State v. Lee
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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. A-1-CA-36103
5 BRANDON LEE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 Karen L. Townsend, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender 13 J.K. Theodosia Johnson, Assistant Appellate Defender 14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 HANISEE, Judge.
18 {1} Defendant has appealed from his convictions of aggravated battery and first
19 degree kidnapping. We previously issued a notice of proposed summary disposition 1 in which we proposed to affirm. Defendant has filed a memorandum in opposition.
2 After due consideration, we remain unpersuaded. We therefore affirm.
3 {2} The pertinent background information was set forth in the notice of proposed
4 summary disposition. We will avoid undue repetition here, and focus instead on the
5 content of the memorandum in opposition.
6 {3} Defendant continues to argue that the trial court erred in rejecting the signed
7 plea agreement due to the victim’s disagreement therewith. [MIO 6] As we stated in
8 our proposed summary disposition, however, Rule 5-304(D) NMRA (2010) expressly
9 grants district courts discretion to reject fully executed plea agreements. The district
10 court’s reason—the victim’s disagreement with the plea deal—was neither arbitrary
11 nor capricious. Therefore, we affirm.
12 {4} Defendant also reiterates his position that the district court erred in denying his
13 motion to change venue. [MIO 7] Defendant does not challenge our observation that
14 all jurors who were aware of the news article at issue were excused by the district
15 court for cause, and that defense counsel did not renew the motion after voir dire.
16 Therefore, we affirm.
17 {5} Defendant next argues that the State failed to prove that the crimes did not
18 occur in Indian Country. [MIO 9] We construe Defendant’s argument as a motion to
19 amend the docketing statement and deny same. See State v. Moore, 1989-NMCA-073,
2 1 ¶¶ 36-51, 109 N.M. 119, 782 P.2d 91 (holding that this Court will deny motions to
2 amend that raise issues that are not viable, even if they allege fundamental or
3 jurisdictional error), superceded by rule on other grounds as recognized in State v.
4 Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. Defendant acknowledges
5 that this issue was not preserved and that no evidence relevant thereon was presented
6 below. [MIO 9, 10] Therefore, we may not address it on appeal. See State v. Harrison,
7 2010-NMSC-038, ¶ 10, 148 N.M. 500, 238 P.3d 869 (“Matters outside the record
8 present no issue for review.”(internal quotation marks and cited authority omitted)).
9 {6} Defendant next argues that his trial counsel was ineffective for failing to raise
10 the issue of jurisdiction and for failing to renew the motion to change venue. [MIO 9-
11 10] For the reasons discussed above, we hold that Defendant has failed to make a
12 prima facie showing of ineffectiveness on appeal. See State v. Bahney, 2012-NMCA-
13 039, ¶ 48, 274 P.3d 134 (stating that a prima facie case of ineffective assistance of
14 counsel requires that a defendant establish that: “(1) counsel’s performance fell below
15 that of a reasonably competent attorney; (2) no plausible, rational strategy or tactic
16 explains counsel’s conduct; and (3) counsel’s apparent failings were prejudicial to the
17 defense”); see also State v. Crocco, 2014-NMSC-016, ¶ 14, 327 P.3d 1068 (“If facts
18 necessary to a full determination are not part of the record, an ineffective assistance
19 claim is more properly brought through a habeas corpus petition[.]”). Defendant must
3 1 pursue his claims for ineffective assistance, if at all, in a collateral proceeding. See
2 State v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845.
3 {7} Defendant’s last argument on appeal is that the docketing statement should be
4 amended to include the argument that his first degree kidnapping conviction is not
5 supported by substantial evidence. [MIO 1, 11-12] We deny Defendant’s motion. See
6 Moore, 1989-NMCA-073, ¶ 44 (“[W]e should deny motions to amend that raise issues
7 that are not viable[.]”). Defendant’s challenge is limited to the second element of the
8 offense: whether the State presented sufficient evidence that Defendant intended “to
9 inflict death or physical injury on [the victim] or to make [her] give [D]efendant
10 money against [her] will for the purpose of enriching [himself.]” [MIO 11] Defendant
11 argues that, by acquitting him of aggravated assault with intent to kill, the jury
12 rejected the theory that he took the victim with the intent to kill her. [MIO 12]
13 Defendant further argues that there was no evidence that he took the victim with the
14 intent to make her give him money for the purpose of enriching him, because the
15 evidence established that Defendant “was merely trying to recover money for a debt
16 that [the victim] owed him—thus it would be making him whole not enriching him.”
17 [MIO 12] Defendant fails to address the State’s third theory of liability,
18 however—that Defendant took the victim with the intent to inflict physical injury.
19 “[A] general verdict will be upheld if the evidence is sufficient to support either of the
4 1 theories that form a basis for conviction.” State v. Massengill, 2003-NMCA-024, ¶ 38,
2 133 N.M. 263, 62 P.3d 354. Defendant acknowledges that the evidence at trial
3 established that the victim got into a vehicle with Defendant to go to an ATM machine
4 only after he demanded that she give him money, hit her at least twice with brass
5 knuckles when she refused, and threatened to take other property of hers instead.
6 [MIO 2-3] After he learned upon arrival at the ATM that the victim did not have her
7 ATM card on her, Defendant told the driver “to drive towards the power plant into the
8 hills” and that he wanted to “just be done with her.” [MIO 3] When the victim started
9 pleading for her life, “Defendant responded by hitting her some more with the brass
10 knuckles.” [MIO 3] The victim ultimately jumped out of the moving vehicle. [MIO
11 4] We hold that this evidence is sufficient for a reasonable juror to find beyond a
12 reasonable doubt that Defendant confined the victim with the intent to inflict physical
13 injury upon her. See State v. Allen, 2000-NMSC-002, ¶ 65, 128 N.M. 482, 994 P.2d
14 728 (stating that the intent element of kidnapping can be established by evidence of
15 acts committed at some later point during the commission of kidnapping).
16 {8} Accordingly, for the reasons stated above and in the notice of proposed
17 summary disposition, we affirm.
18 {9} IT IS SO ORDERED.
19 20 J.
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