State v. Lacasse

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 28,398 10 JESSIE LACASSE, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Douglas R. Driggers, District Judge

14 Gary K. King, Attorney General 15 Andrea Sassa, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender 19 Eleanor Brogan, Assistant Appellate Defender 20 Santa Fe, NM

21 for Appellant 22 MEMORANDUM OPINION 23 VANZI, Judge. 24 Defendant appeals from a judgment and sentence of the district court following 25 a jury trial where he was convicted of two counts of criminal sexual penetration in the

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1 second degree (CSP II), aggravated assault with intent to commit a violent felony, 2 aggravated burglary, armed robbery, and first degree kidnapping, all with a firearm 3 enhancement. Defendant was also convicted of interference with communications, 4 larceny, larceny (over $250), receiving stolen property, receiving stolen property (over 5 $250), residential burglary, unlawful taking of a vehicle (over $2500), and criminal 6 damage to property (under $1000). 7 On appeal, Defendant argues: (1) that the jury was improperly instructed on the 8 kidnapping charge, (2) that several of his convictions violate the prohibition against 9 double jeopardy, (3) that he received ineffective assistance of counsel, (4) that the 10 evidence was insufficient to support the verdict, and (5) that the district court erred by 11 denying his motion to suppress. We affirm. 12 BACKGROUND 13 In May 2005, Defendant’s parents’ home was broken into, and firearms and 14 other valuables were stolen. On June 3, 2005, the home of a family with whom 15 Defendant was acquainted (the Weeks) was also burglarized. Several items were 16 stolen from the Weeks’ home, and a red Honda was stolen from the driveway. By his 17 own admission, Defendant drove the Weeks’ Honda to the home of Victim, where he 18 raped her at gunpoint after breaking in through a window and demanding money. 19 Following the rape, Defendant stole Victim’s truck. Victim went to a neighbor’s

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1 house, called the police, and was taken to the hospital where she gave a statement to 2 police and was examined by a SANE nurse. 3 A few days later, the police recovered Victim’s vehicle. A witness informed 4 police that he knew who had been driving the truck, and said that the person lived at 5 Defendant’s parents’ home. The police obtained consent to search the home, where 6 they found Defendant hiding in a closet. Pursuant to questioning, Defendant 7 confessed on tape and submitted to DNA testing. Defendant moved to suppress his 8 taped confession, but the motion to suppress was denied. 9 After a jury trial, Defendant was convicted of all charges. This appeal 10 followed. The facts relevant to each of Defendant’s issues are more fully discussed 11 below. 12 DISCUSSION 13 First Degree Kidnapping Jury Instruction 14 Defendant argues on appeal that his conviction for first degree kidnapping was 15 improper because the jury instructions failed to require the jurors to differentiate 16 between a conviction for first and second degree kidnapping. 17 “The standard of review we apply to jury instructions depends on whether the 18 issue has been preserved. If the error has been preserved we review the instructions 19 for reversible error. If not, we review for fundamental error. Under both standards 20 we seek to determine whether a reasonable juror would have been confused or

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1 misdirected by the jury instruction.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 2 N.M. 258, 34 P.3d 1134 (internal quotation marks and citations omitted). “The 3 adequacy of a jury instruction is evaluated in the context of all the instructions given 4 to the jury, in order to determine whether the instruction accurately states the law.” 5 State v. Sosa, 1997-NMSC-032, ¶ 25, 123 N.M. 564, 943 P.2d 1017. 6 Because this issue was not preserved below, we evaluate Defendant’s argument 7 to determine whether a fundamental error occurred. “Fundamental error only applies 8 in exceptional circumstances when guilt is so doubtful that it would shock the judicial 9 conscience to allow the conviction to stand.” State v. Baca, 1997-NMSC-045, ¶ 41, 10 124 N.M. 55, 946 P.2d 1066, overruled on other grounds by State v. Belanger, 2009- 11 NMSC-025, 146 N.M. 357, 210 P.3d 783. 12 Defendant argues that a fundamental error occurred when the jury was not 13 given UJI 14-6018 NMRA in addition to UJI 14-403 NMRA. Defendant asserts that 14 UJI 14-6018 is mandatory in all cases where first degree kidnapping is charged, and 15 without the UJI 14-6018 special interrogatories, the jury’s verdict cannot support a 16 first degree kidnapping conviction. Defendant’s argument, which is based upon Use 17 Note 1 of UJI 14-403, is misplaced. Use Note 1 of UJI 14-403 states that UJI 14-6018 18 must be given “if first degree kidnapping is an issue.” UJI 14-403, Use Note 1 19 (emphasis added). UJI 14-6018 asks the jury to determine whether the defendant 20 released a victim of kidnapping in a safe place and whether the defendant subjected

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1 the victim to physical injury. See UJI 14-6018, Use Note 1. For the reasons that 2 follow, the first degree kidnapping was not an issue in this case. 3 The jury was instructed on the elements of first degree kidnapping. NMSA 4 1978, Section 30-4-1(B) (2003) states, “Whoever commits kidnapping is guilty of a 5 first degree felony, except that he is guilty of a second degree felony when he 6 voluntarily frees the victim in a safe place and does not inflict physical injury or a 7 sexual offense upon the victim.” The essential elements of first degree kidnapping are 8 that (1) Defendant took, restrained or confined Victim by force, intimidation, or 9 deception; (2) Defendant intended to hold Victim against Victim’s will to inflict death, 10 physical injury or a sexual offense on Victim; and (3) this happened in New Mexico 11 on or about June 3, 2005. See UJI 14-403. 12 Section 30-4-1(B) is clear that kidnapping is generally a first degree offense, 13 and is only reduced to second degree if the kidnapper does not physically harm or 14 sexually assault the victim, and releases the victim in a safe place. See § 30-4-1(B). 15 Defendant was charged with first degree kidnapping. The jury in this case received 16 a special interrogatory requiring the jury to determine whether Defendant inflicted a 17 physical injury or sexual offense upon Victim. The jury found beyond a reasonable 18 doubt that Defendant both kidnapped and sexually assaulted Victim. 19 Defendant’s fundamental error argument is based on his contention that without 20 UJI 14-6018, the jury has not been instructed on every element of the crime. The

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1 crime of first degree kidnapping requires only the elements of restraint with intent to 2 inflict death, physical injury, or sexual offense. See § 30-40-1(B). UJI 14-6018, on 3 the other hand, is to be used if there is an issue relating to freeing the victim in a safe 4 place or whether the defendant has inflicted great bodily harm on the victim. If either 5 of the two exceptions to first degree kidnapping is present or in question, then the jury 6 needs to be instructed. 7 The district court was not required to provide the jury with UJI 14-6018 8 because neither of the triggering conditions was “an issue” in this case. The jury 9 found that Defendant took, restrained, or confined Victim by force, intimidation or 10 deception, intending to inflict death, physical injury, or sexual offense on her, and did 11 inflict physical injury or sexual offense on her. Thus, the jurors found beyond a 12 reasonable doubt that Defendant committed all elements of first degree kidnapping. 13 In any event, the jury was given a special interrogatory asking whether Defendant had 14 inflicted a sexual offense in the course of the kidnapping. It answered “yes.” We do 15 not believe that the jury was confused or misdirected, or that it would shock the 16 conscience to allow the conviction for first degree kidnapping to stand. Finding no 17 fundamental error, we affirm Defendant’s conviction for first degree kidnapping. 18 Double Jeopardy 19 Defendant argues that the prohibition against double jeopardy bars his 20 convictions for both CSP II and kidnapping under the theory that he has been

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1 subjected to multiple punishments for the same offense. He also argues that the 2 firearm enhancement for CSP II, aggravated burglary, and armed robbery constitute 3 multiple punishment. 4 We generally apply a de novo standard of review to the constitutional question 5 of whether there has been a double jeopardy violation. State v. Andazola, 6 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77. “However, where factual issues 7 are intertwined with the double jeopardy analysis, we review the trial court’s fact 8 determinations under a deferential substantial evidence standard of review.” State v. 9 Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737. 10 Here, Defendant argues a “double description” violation of double jeopardy. 11 See State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61 (describing 12 the two types of double jeopardy cases). For “double description” cases, we apply the 13 two-part test defined in Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 14 (1991): (1) whether the conduct is unitary and (2) if so, whether the Legislature 15 intended to create separately punishable offenses based on the statutes. DeGraff, 16 2006-NMSC-011, ¶ 26. Conduct is non-unitary if “sufficient indicia of distinctness” 17 separate the illegal acts. Swafford, 112 N.M. at 13, 810 P.2d at 1233. 18 To determine whether sufficient indicia of distinctness support a conviction for 19 two separate crimes, we review the following factors: “separation between the illegal 20 acts by either time or physical distance, the quality and nature of the individual acts,

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1 . . . the objectives and results of each act[,] . . . the existence of an intervening event, 2 the defendant’s intent as evinced by his or her conduct and utterances, the number of 3 victims, and the behavior of the defendant between acts.” State v. Contreras, 2007- 4 NMCA-045, ¶ 21, 141 N.M. 434, 156 P.3d 725 (internal quotation marks and citation 5 omitted). We will not find that a defendant’s conduct is unitary where the defendant 6 completes one of the charged crimes before committing the other. See State v. Bernal, 7 2006-NMSC-050, ¶ 11, 140 N.M. 644, 146 P.3d 289 (holding conduct was not unitary 8 where intruders broke into a home, murdered one victim, then attempted to rob a 9 second victim; the murder was complete before the attempted robbery occurred). 10 Defendant asserts that in this case, kidnapping and CSP II cannot be considered 11 two separate acts because they lack sufficient indicia of distinctness. He argues that 12 holding Victim against her will to inflict a sexual offense upon her, and actually 13 inflicting that offense, was unitary conduct because it was not separated by time or 14 place. He further contends that the State did not introduce evidence at trial to support 15 a finding that Victim was confined or restrained at any time other than when she was 16 being sexually assaulted. We disagree. 17 According to Victim’s testimony, Defendant broke into her home, pointed a gun 18 at her, and demanded money. Stating that she had no money, Victim offered 19 Defendant a variety of other valuables instead. Defendant allowed her to let her 20 barking dog out of the house then ordered her to take off her robe.

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1 After Defendant ordered Victim to disrobe, he sexually assaulted her. When 2 the first instance of sexual assault was completed, he forced Victim at gunpoint to get 3 up, leave the living room, get a bottle of lotion from the bathroom, and return to the 4 living room, where he sexually assaulted her a second time. Although the kidnapping 5 and the sexual assaults occurred in Victim’s home during a fairly short period of time, 6 the kidnapping was complete before the two acts of CSP II were committed. 7 Defendant’s acts of pointing a gun at her in her home, demanding money, and 8 ordering her about constituted the taking, restraint, or confinement of Victim by force, 9 intimidation, or deception. His act of ordering her to take off her robe at gunpoint 10 supported a finding that he intended to inflict death, physical injury, or sexual offense 11 on her. These acts occurred prior to the sexual assaults. Victim testified that the 12 incident happened on June 3, 2005. In his taped confession, Defendant recounted 13 almost exactly the same sequence of events. 14 Defendant’s own words highlighted the differing objectives of the kidnapping 15 and the sexual assaults. Defendant stated that when he first entered Victim’s home, 16 he intended to rob her. He sexually assaulted Victim intending “to take something 17 else from her” because he was unable to deprive her of money. Intervening events 18 included allowing Victim to let her dog out of the house and requiring her to leave the 19 living room and get lotion between the sexual assaults. The evidence provided several 20 indicia of distinctness.

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1 It is clear that the act of kidnapping was complete before the first CSP II 2 occurred. Further, after Defendant sexually assaulted Victim, he continued to hold the 3 gun on her and order her about the house, then ripped the phone from the wall and 4 stole her truck. The evidence supports a finding that the kidnapping continued after 5 he completed the sexual assaults. Cf. State v. McGuire, 110 N.M. 304, 309, 795 P.2d 6 996, 1001 (1990) (holding that double jeopardy was not violated where the defendant 7 was convicted of both CSP and kidnapping, and the kidnapping was complete before 8 the sexual assault occurred and continued throughout the course of the defendant’s 9 other crimes). Because the incidents are sufficiently distinct, we hold that 10 Defendant’s conduct was not unitary. Having made this determination, our inquiry 11 ends, and we conclude that Defendant’s convictions for CSP II and kidnapping do not 12 violate double jeopardy. 13 Defendant also argues on appeal that the firearm enhancements for CSP II, 14 aggravated burglary, and armed robbery constitute multiple punishment for the same 15 action because the use of a firearm was also a specific element of each of these crimes. 16 Defendant concedes that State v. Roper, 2001-NMCA-093, ¶ 20, 131 N.M. 189, 34 17 P.3d 133, holds that a defendant’s conviction for a crime involving a deadly weapon 18 does not violate double jeopardy when the punishment for that crime is enhanced 19 under NMSA 1978, Section 31-18-16 (1993).

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1 Defendant asserts that his case is distinguishable from existing case law 2 requiring firearm enhancement because the jury instructions specifically called for the 3 jury to find the use of a firearm, and not merely a deadly weapon. Defendant cites to 4 no authority in support of his argument. An appellate court will not consider an issue 5 if no authority is cited in support of the issue. In re Adoption of Doe, 100 N.M. 764, 6 765, 676 P.2d 1329, 1330 (1984). 7 We affirm Defendant’s convictions and hold that no double jeopardy violations 8 occurred.

9 Ineffective Assistance of Counsel 10 Defendant argues on appeal that he received ineffective assistance of counsel 11 at trial resulting in prejudice against him. He contends that his attorney was 12 ineffective because he failed to adequately question Detective Myers on the stand and 13 failed to renew the motion to suppress Defendant’s taped confession. 14 There is a two-part test for proving ineffective assistance of counsel; Defendant 15 must show (1) that counsel’s performance fell below that of a reasonably competent 16 attorney, and (2) that Defendant was prejudiced by the deficient performance. State 17 v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. The burden of proof

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1 is on Defendant to prove both prongs. Id. Trial counsel is presumed competent. State 2 v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. 3 The crux of Defendant’s claim of ineffective assistance is that his trial counsel 4 did not question Detective Myers about crucial differences between his testimony at 5 the pretrial suppression hearing and his testimony at trial. Defendant argues counsel 6 should have questioned Detective Myers more thoroughly at trial about the timeline 7 of events that occurred the morning of Defendant’s arrest, and then, based upon the 8 testimony he would have elicited, renewed the motion to suppress Defendant’s taped 9 confession. 10 Defendant’s motion to suppress the confession was denied at a pretrial 11 suppression hearing. Trial counsel thoroughly questioned Detective Myers about the 12 timeline of the morning Defendant was arrested. Counsel did not use Detective 13 Myers’ testimony at the suppression hearing to rebut any inconsistencies in his 14 testimony at trial. 15 Defendant bears the burden of showing that, had he been represented by 16 competent counsel, there is a reasonable probability that the outcome of the 17 proceeding would have been different. See Baca, 1997-NMSC-045, ¶ 20. Here, 18 ample evidence, including Victim’s testimony, Victim’s identification of Defendant, 19 and undisputed DNA evidence link Defendant to the crimes for which he was 20 convicted. There is little probability that the outcome of the trial would have been

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1 different even if Defendant’s attorney had renewed the motion to suppress his 2 confession and the motion had been granted by the district court. 3 As the State argues in its answer brief, when a defendant has not established a 4 prima facie case of ineffective assistance of counsel, this Court has expressed its 5 preference for resolution of such claims through a habeas corpus proceeding. State 6 v. Herrera, 2001-NMCA-073, ¶ 37, 131 N.M. 22, 33 P.3d 22. When the record does 7 not adequately document the sort of evidence essential to a determination of trial 8 counsel’s effectiveness, an evidentiary hearing may be necessary. State v. Grogan, 9 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494. In this case, Defendant’s claims 10 are based entirely upon the record before this Court. It is unlikely that an evidentiary 11 hearing would provide any further insight into counsel’s actions. 12 We hold Defendant has failed to meet his burden of showing that he was 13 prejudiced by ineffective assistance of counsel. 14 Sufficiency of the Evidence 15 Defendant argues that insufficient evidence was presented at trial to support his 16 convictions for two counts of receiving stolen property, larceny (over $250), and 17 residential burglary. We address each count in turn. 18 “Substantial evidence review requires analysis of whether direct or 19 circumstantial substantial evidence exists and supports a verdict of guilt beyond a 20 reasonable doubt with respect to every element essential for conviction. We

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1 determine whether a rational factfinder could have found that each element of the 2 crime was established beyond a reasonable doubt.” State v. Kent, 2006-NMCA-134, 3 ¶10, 140 N.M. 606, 145 P.3d 86 (citations omitted). Substantial evidence is “such 4 relevant evidence as a reasonable mind might accept as adequate to support a 5 conclusion.” State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 6 (internal quotation marks and citation omitted). On appeal, the appellate court views 7 the evidence in the light most favorable to the verdict, resolving all conflicts and 8 indulging all reasonable inferences in favor of the verdict. State v. Apodaca, 118 9 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). Further, “the jury is free to reject 10 Defendant’s version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 11 438, 971 P.2d 829 (filed 1998). 12 The first count of receiving stolen property involved a Ruger 7mm rifle and/or 13 a Remington 12 gauge shotgun that were reported stolen from the home of 14 Defendant’s father, Richard LaCasse. In order to prove beyond a reasonable doubt 15 that Defendant committed the crime of receiving stolen property, it was necessary for 16 the State to show that the items had been stolen; that Defendant disposed of the 17 property; at the time he disposed of the property, Defendant knew or believed it was 18 stolen; the property was a firearm; and this occurred in New Mexico on or about May 19 13, 2005. UJI 14-1650 NMRA.

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1 At trial, Richard LaCasse testified that when he was out of town in May 2005, 2 his home was broken into, his gun safe was broken open, and a pistol, hunting rifle, 3 and shotgun were stolen. Detective Upshaw testified that Defendant’s former 4 roommate, Curtis James, turned in the shotgun and rifle in question to the police, 5 saying Defendant had left them at his home. In Defendant’s taped confession, he 6 admitted to breaking into his parents’ home, breaking into the gun safe, and stealing 7 one handgun (although not the rifle and shotgun). Viewing the evidence in the light 8 most favorable to the verdict, we hold this evidence was sufficient to support the 9 conviction. 10 The second count of receiving stolen property involved a DVD player, 11 television, camcorder, DVDs, and/or a stereo that were also reported missing from the 12 home of Richard LaCasse. As discussed above, a taped statement of Defendant 13 admitting to breaking into his parents’ home was played for the jury. Although 14 Defendant claimed he did not steal anything from the home other than one handgun, 15 some, though not all of the items listed (the television and camcorder), were recovered 16 from the home of Curtis James, where Defendant had previously been staying. 17 Defendant argues that the State relies upon improper inference, and that merely 18 leaving items at a home from which he had recently moved does not constitute 19 disposing of property under NMSA 1978, Section 30-16-11 (1987) (amended 2006). 20 Although all of the stolen items were not located, the presence of some of the items

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1 stolen from his parents’ home at or around the same time Defendant admitted to 2 breaking into the home supports a finding that Defendant knew or believed the 3 recovered items were stolen. Also, simply because stolen property is not recovered 4 does not mean it was not disposed of. A reasonable jury could have permissibly 5 inferred that Defendant did steal and dispose of the property listed above. We affirm 6 Defendant’s convictions for both counts of receiving stolen property. 7 To uphold Defendant’s conviction for larceny, the State was required to prove 8 beyond a reasonable doubt that Defendant took and carried away the DVD player, 9 television, camcorder, DVDs, and/or a stereo, that the combined value of the items 10 was greater than $250, that Defendant intended to permanently deprive the owner of 11 the items, and that this occurred on or about May 13, 2005. See UJI 14-1601 NMRA. 12 As discussed above, Defendant admitted breaking into his parents’ home on or about 13 May 13, 2005, and several of the items reported stolen were later recovered from the 14 home of Defendant’s former roommate. Richard LaCasse testified that the items’ 15 combined value exceeded $250 at the time they were stolen. This evidence is 16 sufficient for a reasonable factfinder to determine Defendant committed the crime of 17 larceny (over $250), and we affirm his conviction. 18 Finally, Defendant argues on appeal that insufficient evidence was presented 19 to support his conviction for burglary. To convict Defendant for burglary, it was 20 necessary for the State to prove beyond a reasonable doubt that Defendant entered a

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1 dwelling without authorization, that he did so intending to commit a theft therein, and 2 that this occurred on or about June 3, 2005. UJI 14-1630 NMRA. Douglas Weeks 3 testified that on June 3, 2005, his home was broken into and several items were stolen 4 from his home. At the same time, one of his vehicles was stolen from his driveway. 5 Mr. Weeks testified that the keys to the stolen car had been inside his home. When 6 the police recovered another vehicle that Defendant admitted to stealing, they located 7 in and around the vehicle jewelry and other items that Mr. Weeks had reported stolen 8 from his home. 9 Defendant testified that he did not burglarize the Weeks’ home. However, 10 Defendant knew the Weeks, and he was at their home the day of the burglary. He 11 admitted to stealing the Weeks’ Honda and entering their garage. All of this evidence 12 supports a conviction for burglary. “The reviewing court does not weigh the evidence 13 or substitute its judgment for that of the factfinder as long as there is sufficient 14 evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 15 346, 950 P.2d 789. Sufficient evidence was presented for the factfinder to have 16 determined each element of burglary was proved beyond a reasonable doubt. We 17 affirm Defendant’s conviction for burglary. 18 Defendant argues, pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 19 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), that 20 insufficient evidence supports the remainder of his convictions. Aside from those

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1 convictions discussed above, Defendant does not specify why each count should be 2 overturned. “It is [D]efendant’s burden to bring up a record sufficient for review of 3 the issues he raises on appeal.” State v. Jim, 107 N.M. 779, 780, 765 P.2d 195, 196 4 (Ct. App. 1988). 5 A review of the record shows that at trial, the State presented ample evidence 6 to support Defendant’s remaining convictions, including: Defendant’s taped 7 confession, Victim’s testimony, testimony from police officers regarding the recovery 8 of the stolen vehicles and other stolen items, and uncontested DNA evidence. 9 Defendant’s argument that insufficient evidence supports his remaining convictions 10 is without merit. We affirm Defendant’s remaining convictions. 11 Motion to Suppress 12 Finally, Defendant contends that the district court erred in denying his motion 13 to suppress his taped confession. He argues that the confession was coerced, resulted 14 from improper custodial interrogation, and occurred after the police ignored his 15 request for an attorney. On appeal from a district court’s ruling on a motion to 16 suppress, findings of fact are reviewed to determine if they are supported by 17 substantial evidence and legal conclusions are reviewed de novo. State v. Leyba, 18 1997-NMCA-023, ¶ 8, 123 N.M. 159, 935 P.2d 1171. 19 On appeal, Defendant does not point to any evidence to support his assertions 20 of improper custodial interrogation. Similarly, he did not present any evidence

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1 supporting his argument at the suppression hearing. Defendant presents only the 2 arguments of his attorney to support his contention that he was subjected to improper 3 custodial interrogation and that his request for an attorney was denied. An attorney’s 4 arguments are not evidence. See State v. Boergadine, 2005-NMCA-028, ¶ 37, 137 5 N.M. 92, 107 P.3d 532. 6 The district court found that Defendant was read his Miranda rights prior to any 7 interrogation by the police; that he was not coerced, threatened, or promised anything 8 in exchange for his statement; and that Defendant did not request an attorney. These 9 findings are supported by the testimony of Detective Meyers at the suppression 10 hearing. No evidence was presented at the hearing to contradict the testimony; we 11 therefore hold that substantial evidence supported the district court’s factual findings. 12 Because the findings do not provide any support for Defendant’s arguments, we affirm 13 the district court’s denial of Defendant’s motion to suppress. 14 CONCLUSION 15 Based on the foregoing, we affirm the judgment and sentence of the district 16 court. 17 IT IS SO ORDERED.

18 __________________________________ 19 LINDA M. VANZI, Judge

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1 WE CONCUR:

2 _________________________________ 3 JAMES J. WECHSLER, Judge

4 _________________________________ 5 JONATHAN B. SUTIN, Judge