State v. Lomas

• Court: New Mexico Court of Appeals
• Decided: January 26, 2010
• Docket: 29,722
• Status: Unpublished

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 29,722

10 GREG LOMAS,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 13 Steven L. Bell, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Karl Erich Martell, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 WECHSLER, Judge.

23 Defendant appeals his convictions for one count of burglary and one count of 1 larceny over $250. [MIO 1; DS 2] We proposed to affirm in a notice of proposed

2 summary disposition, and pursuant to an extension, Defendant has filed a timely

3 memorandum in opposition. Remaining unpersuaded by Defendant’s memorandum,

4 we affirm his convictions.

5 Sufficiency of the Evidence

6 Defendant contends that there is insufficient evidence to support his

7 convictions. [MIO 2-3] In reviewing the sufficiency of the evidence in a criminal

8 case, we must determine whether substantial evidence, either direct or circumstantial,

9 exists to support a verdict of guilty beyond a reasonable doubt for every essential

10 element of the crime at issue. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.

11 438, 971 P.2d 829 (filed 1998). The evidence is reviewed in the light most favorable

12 to the verdict, resolving all conflicts and indulging all permissible inferences to

13 uphold the conviction and disregarding all evidence and inferences to the contrary, to

14 ensure that a rational factfinder could have found each element of the crime

15 established beyond a reasonable doubt. Id. Finally, we observe that it is for the

16 factfinder to evaluate the weight of the evidence, to assess the credibility of the

17 various witnesses, and to resolve any conflicts in the evidence; we will not substitute

18 our judgment as to such matters. See State v. Roybal, 115 N.M. 27, 30, 846 P.2d 333,

19 336 (Ct. App. 1992).

2 1 In our notice of proposed summary disposition, we reviewed the evidence and

2 testimony introduced at trial in support of Defendant’s convictions. In his

3 memorandum in opposition, Defendant does not challenge our recitation of the

4 evidence. [MIO 1-3] He also fails to challenge the analysis contained in our notice

5 of proposed summary disposition, which resulted in our proposal to affirm. [MIO 2-

6 3] Therefore, for the reasons set forth in our notice of proposed summary disposition,

7 we hold that there was sufficient evidence to support Defendant’s convictions.

8 Motion for a New Trial

9 Defendant claims that the district court erred in denying his motion for a new

10 trial, his motion to reconsider the motion for a new trial, and his request for an

11 evidentiary hearing based on allegations that one juror made a mistake in entering the

12 verdict. [MIO 4; DS 10] He states that a juror wrote a letter to the judge prior to

13 sentencing stating that she and another juror believed Defendant was not guilty of

14 burglary but acquiesced in the verdict in order to go home. [MIO 2; DS 8-9]

15 We review the district court’s decision to deny Defendant’s motion for a new

16 trial for abuse of discretion. See State v. Garcia, 2005-NMSC-038, ¶ 9, 138 N.M.

17 659, 125 P.3d 638. As discussed more fully in our notice of proposed summary

18 disposition, Rule 11-606(B) NMRA specifically prohibits such an attack on the jury

19 verdict. See Rule 11-606(B) (providing that a verdict may only be called into question

3 1 based upon a juror’s allegations that “extraneous prejudicial information was

2 improperly brought to the jury’s attention,” an “outside influence was improperly

3 brought to bear upon [a] juror,” or “there was a mistake in entering the verdict onto

4 the verdict form”); cf. State v. Maestas, 2005-NMCA-062, ¶ 28, 137 N.M. 477, 112

5 P.3d 1134 (noting that “it is settled law that jurors may not impeach their verdict by

6 affidavit after they are discharged”), rev’d on other grounds, 2007-NMSC-001, 140

7 N.M. 836, 149 P.3d 933 (filed 2006).

8 Again, Defendant fails to challenge or dispute the analysis set forth in our

9 notice of proposed summary disposition on this issue. [MIO 4] Therefore, for the

10 reasons set forth in our notice of proposed summary disposition, we affirm the district

11 court’s decision to deny Defendant’s motion for a new trial or an evidentiary hearing.

12 For the foregoing reasons as well as those set forth in our notice of proposed

13 disposition, we affirm Defendant’s convictions.

14 IT IS SO ORDERED.

15 ______________________________ 16 JAMES J. WECHSLER, Judge

17 WE CONCUR:

18 _______________________________ 19 LINDA M. VANZI, Judge

4 1 _______________________________ 2 TIMOTHY L. GARCIA, Judge