1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 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. 29,406
10 ALVIN MARIANO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY 13 Grant L. Foutz, District Judge
14 Gary K. King, Attorney General 15 Nicole Beder, Assistant Attorney General 16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender 19 Will O’Connell, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 FRY, Chief Judge. 1 Defendant appeals his conviction for second degree murder. He raises a single
2 issue, challenging the sufficiency of the evidence to support the verdict. For the
3 reasons that follow, we affirm.
2 1 BACKGROUND
2 Defendant’s conviction arises out of a series of events on December 7, 2007.
3 At that time Defendant, his wife Olivia, and their eight-month-old daughter Kirsten
4 were living in the home of Olivia’s brother, Stewart. Also sharing the home was
5 Stewart’s other sister, Lanita, along with her husband Alfredo and their three young
6 children. Defendant and Alfredo awoke early, and after dropping Alfredo’s children
7 off at school, they bought beer and returned to the house to watch a movie. Later they
8 left to run errands. At that point Defendant made another stop at the liquor store,
9 where he bought an eighteen-pack of beer and a bottle of vodka. They then returned
10 to the house, and Defendant started drinking.
11 Later, while they were all watching TV, Olivia and Lanita began tickling
12 Defendant. One of the children then struck Defendant. He became angry, pushed
13 Olivia and Lanita, and started swearing. Defendant became increasingly aggressive,
14 and when he pushed Olivia again she fell against Lanita, who in turn fell into the wall
15 so hard that the sheetrock was damaged. Defendant and Olivia then spoke in their
16 room alone, after which Defendant apologized.
17 Everyone left the house later to run more errands. Ultimately Defendant and
18 Olivia stopped at a bar to try to borrow some money from someone. While they were
19 there Defendant had a brief conversation with a former girlfriend, precipitating
3 1 another argument. As Defendant and Olivia were arguing, Lanita arrived at the bar
2 in order to retrieve the house key. She told them to stop fighting, and they all left.
3 The argument continued in the car, and at one point, Defendant struck Olivia in the
4 face, knocking a lens out of her glasses.
5 When they arrived at the house, Defendant entered first, followed by Olivia.
6 About twenty minutes later Lanita went inside as well. The house was quiet, and
7 Lanita began preparing clothing for her children for the next day. She heard a knock
8 on the door and Defendant announced, “I’m getting the hell out of here.” When
9 Lanita asked about Olivia, Defendant said she and Kirsten were sleeping in their
10 room.
11 A little later, Kirsten began crying. Lanita walked into their room and found
12 Kirsten strapped into her car seat and Olivia lying face down on the floor. Assuming
13 Olivia was passed out or sleeping, Lanita brought Kirsten into the living room. When
14 Kirsten began fussing later, Lanita returned to the bedroom to retrieve some diapers.
15 She stepped over Olivia in the process, and noticed that Olivia had not moved.
16 Alfredo returned to the house that evening and tried to wake Olivia. He found
17 that she was cold and stiff and told Lanita to call 911. By the time the ambulance
18 arrived, Olivia was already dead. The medical personnel who responded to the scene
19 observed that her clothing was in disarray in a manner that suggested she had been re-
4 1 dressed by someone else. They also noted that Olivia had numerous readily-
2 observable facial injuries, which both Lanita and Alfredo testified had not been
3 present earlier that day.
4 When the autopsy was subsequently performed, the examiner found numerous
5 injuries consistent with a beating, including contusions and abrasions on Olivia’s face,
6 neck, back, buttocks, and shins. In total, Olivia’s body showed at least twenty-three
7 separate areas of injury, which all appeared to have been inflicted at around the same
8 time, within hours of her death. The internal exam showed that Olivia had a large
9 amount of bleeding at the base of the brain, as well as significant bleeding around the
10 carotid artery. The examiner ultimately concluded that a direct blow to the neck had
11 caused “dissection” of this artery, causing blood to enter Olivia’s brain, killing her.
12 STANDARD OF REVIEW
13 “The test for sufficiency of the evidence is whether substantial evidence of
14 either a direct or circumstantial nature exists to support a verdict of guilt beyond a
15 reasonable doubt with respect to every element essential to a conviction.” State v.
16 Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks
17 and citation omitted). “Substantial evidence is defined as that evidence which is
18 acceptable to a reasonable mind as adequate support for a conclusion.” State v.
19 Robinson, 94 N.M. 693, 696, 616 P.2d 406, 409 (1980), holding limited on other
5 1 grounds by Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982). Furthermore, “we must
2 view the evidence in the light most favorable to the guilty verdict, indulging all
3 reasonable inferences and resolving all conflicts in the evidence in favor of the
4 verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
5 “The relevant question is whether, after viewing the evidence in the light most
6 favorable to the prosecution, any rational trier of fact could have found the essential
7 elements of the crime beyond a reasonable doubt.” State v. Chavez, 2009-NMSC-035,
8 ¶ 11, 146 N.M. 434, 211 P.3d 891 (alteration omitted) (internal quotation marks and
9 citation omitted).
10 DISCUSSION
11 Defendant was convicted of second degree murder pursuant to NMSA 1978,
12 Section 30-2-1(B) (1994). The elements of the offense include performing acts that
13 result in the killing of a human being without lawful justification or excuse, and
14 knowledge that such acts create a strong probability of death or great bodily harm to
15 that individual or another. Id.; State v. Duffy, 1998-NMSC-014, ¶ 25, 126 N.M. 132,
16 967 P.2d 807.
17 To establish Defendant’s guilt, the State called numerous witnesses, including
18 Lanita, Alfredo, and Stewart, whose testimony established the series of events
19 outlined above. The State also called the medical expert who supervised the autopsy,
6 1 who testified about the many injuries Olivia suffered as described above, including
2 the dissected artery that ultimately caused her death. Based on this evidence the jury
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1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 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. 29,406
10 ALVIN MARIANO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY 13 Grant L. Foutz, District Judge
14 Gary K. King, Attorney General 15 Nicole Beder, Assistant Attorney General 16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender 19 Will O’Connell, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 FRY, Chief Judge. 1 Defendant appeals his conviction for second degree murder. He raises a single
2 issue, challenging the sufficiency of the evidence to support the verdict. For the
3 reasons that follow, we affirm.
2 1 BACKGROUND
2 Defendant’s conviction arises out of a series of events on December 7, 2007.
3 At that time Defendant, his wife Olivia, and their eight-month-old daughter Kirsten
4 were living in the home of Olivia’s brother, Stewart. Also sharing the home was
5 Stewart’s other sister, Lanita, along with her husband Alfredo and their three young
6 children. Defendant and Alfredo awoke early, and after dropping Alfredo’s children
7 off at school, they bought beer and returned to the house to watch a movie. Later they
8 left to run errands. At that point Defendant made another stop at the liquor store,
9 where he bought an eighteen-pack of beer and a bottle of vodka. They then returned
10 to the house, and Defendant started drinking.
11 Later, while they were all watching TV, Olivia and Lanita began tickling
12 Defendant. One of the children then struck Defendant. He became angry, pushed
13 Olivia and Lanita, and started swearing. Defendant became increasingly aggressive,
14 and when he pushed Olivia again she fell against Lanita, who in turn fell into the wall
15 so hard that the sheetrock was damaged. Defendant and Olivia then spoke in their
16 room alone, after which Defendant apologized.
17 Everyone left the house later to run more errands. Ultimately Defendant and
18 Olivia stopped at a bar to try to borrow some money from someone. While they were
19 there Defendant had a brief conversation with a former girlfriend, precipitating
3 1 another argument. As Defendant and Olivia were arguing, Lanita arrived at the bar
2 in order to retrieve the house key. She told them to stop fighting, and they all left.
3 The argument continued in the car, and at one point, Defendant struck Olivia in the
4 face, knocking a lens out of her glasses.
5 When they arrived at the house, Defendant entered first, followed by Olivia.
6 About twenty minutes later Lanita went inside as well. The house was quiet, and
7 Lanita began preparing clothing for her children for the next day. She heard a knock
8 on the door and Defendant announced, “I’m getting the hell out of here.” When
9 Lanita asked about Olivia, Defendant said she and Kirsten were sleeping in their
10 room.
11 A little later, Kirsten began crying. Lanita walked into their room and found
12 Kirsten strapped into her car seat and Olivia lying face down on the floor. Assuming
13 Olivia was passed out or sleeping, Lanita brought Kirsten into the living room. When
14 Kirsten began fussing later, Lanita returned to the bedroom to retrieve some diapers.
15 She stepped over Olivia in the process, and noticed that Olivia had not moved.
16 Alfredo returned to the house that evening and tried to wake Olivia. He found
17 that she was cold and stiff and told Lanita to call 911. By the time the ambulance
18 arrived, Olivia was already dead. The medical personnel who responded to the scene
19 observed that her clothing was in disarray in a manner that suggested she had been re-
4 1 dressed by someone else. They also noted that Olivia had numerous readily-
2 observable facial injuries, which both Lanita and Alfredo testified had not been
3 present earlier that day.
4 When the autopsy was subsequently performed, the examiner found numerous
5 injuries consistent with a beating, including contusions and abrasions on Olivia’s face,
6 neck, back, buttocks, and shins. In total, Olivia’s body showed at least twenty-three
7 separate areas of injury, which all appeared to have been inflicted at around the same
8 time, within hours of her death. The internal exam showed that Olivia had a large
9 amount of bleeding at the base of the brain, as well as significant bleeding around the
10 carotid artery. The examiner ultimately concluded that a direct blow to the neck had
11 caused “dissection” of this artery, causing blood to enter Olivia’s brain, killing her.
12 STANDARD OF REVIEW
13 “The test for sufficiency of the evidence is whether substantial evidence of
14 either a direct or circumstantial nature exists to support a verdict of guilt beyond a
15 reasonable doubt with respect to every element essential to a conviction.” State v.
16 Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks
17 and citation omitted). “Substantial evidence is defined as that evidence which is
18 acceptable to a reasonable mind as adequate support for a conclusion.” State v.
19 Robinson, 94 N.M. 693, 696, 616 P.2d 406, 409 (1980), holding limited on other
5 1 grounds by Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982). Furthermore, “we must
2 view the evidence in the light most favorable to the guilty verdict, indulging all
3 reasonable inferences and resolving all conflicts in the evidence in favor of the
4 verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
5 “The relevant question is whether, after viewing the evidence in the light most
6 favorable to the prosecution, any rational trier of fact could have found the essential
7 elements of the crime beyond a reasonable doubt.” State v. Chavez, 2009-NMSC-035,
8 ¶ 11, 146 N.M. 434, 211 P.3d 891 (alteration omitted) (internal quotation marks and
9 citation omitted).
10 DISCUSSION
11 Defendant was convicted of second degree murder pursuant to NMSA 1978,
12 Section 30-2-1(B) (1994). The elements of the offense include performing acts that
13 result in the killing of a human being without lawful justification or excuse, and
14 knowledge that such acts create a strong probability of death or great bodily harm to
15 that individual or another. Id.; State v. Duffy, 1998-NMSC-014, ¶ 25, 126 N.M. 132,
16 967 P.2d 807.
17 To establish Defendant’s guilt, the State called numerous witnesses, including
18 Lanita, Alfredo, and Stewart, whose testimony established the series of events
19 outlined above. The State also called the medical expert who supervised the autopsy,
6 1 who testified about the many injuries Olivia suffered as described above, including
2 the dissected artery that ultimately caused her death. Based on this evidence the jury
3 could readily have inferred that Defendant beat Olivia, the dissected carotid artery was
4 among the injuries she suffered in the course of this beating, and, consequently, that
5 Defendant’s acts caused her death. See, e.g., State v. Huber, 2006-NMCA-087, ¶ 20,
6 140 N.M. 147, 140 P.3d 1096 (upholding a conviction for second degree murder,
7 based on evidence that the defendant had orchestrated a beating of the victim and the
8 victim’s condition worsened and he died shortly thereafter, together with expert
9 testimony that a fatal head injury or internal bleeding may have been the medical
10 cause of death; this evidence permitted the jury to make a reasonable inference that
11 the defendant’s acts constituted a significant cause of the victim’s death and that there
12 was no other independent event that broke the chain of events from the beating to
13 death).
14 We acknowledge that Defendant testified to a different version of events and
15 that he presented other evidence tending to undermine various aspects of the State’s
16 case. “However, the jury was not obligated to believe [the d]efendant’s testimony, to
17 disbelieve or discount conflicting testimony, or to adopt [the d]efendant’s view.”
18 State v. Foxen, 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 1071. As a result, this
19 material presents no basis for reversal. See State v. Kersey, 120 N.M. 517, 520, 903
7 1 P.2d 828, 831 (1995) (stating that we do not consider the merit of evidence that may
2 have supported a different result); see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126
3 N.M. 438, 971 P.2d 829 (filed 1998) (holding that contrary evidence does not warrant
4 reversal because the jury is free to reject a party’s version of events).
5 On appeal Defendant specifically attacks the sufficiency of the evidence to
6 establish knowledge. The State’s apparent lack of direct evidence of Defendant’s state
7 of mind is unsurprising. “Knowledge, like intent, is personal in its nature and [is
8 rarely] susceptible of proof by direct evidence. It may [therefore] be inferred from
9 occurrences and circumstances.” State v. Montoya, 77 N.M. 129, 131, 419 P.2d 970,
10 971 (1966).
11 Defendant contends that the evidence does not support an inference of the
12 requisite knowledge in this case. We disagree. As briefly described in the
13 background section of this opinion, evidence was presented that Defendant beat Olivia
14 shortly before her death, causing her to suffer a large number and variety of injuries.
15 The blows were severe enough to cause swelling, bruising, and hemorrhaging. Many
16 of these injuries were inflicted in the vulnerable area of the head, neck, and chest. At
17 least one of the blows was sufficiently forceful to cause dissection of the carotid
18 artery, causing blood to enter the brain, killing her. Based on this evidence, the jury
19 could very reasonably have inferred that Defendant inflicted a brutal beating upon
8 1 Olivia, such that he knew or should have known that his actions created a strong
2 probability of death or great bodily harm. See State v. Brown, 1996-NMSC-073, ¶¶
3 16-17, 122 N.M. 724, 931 P.2d 69 (stating that objective knowledge, rather than
4 subjective knowledge, is required for second degree murder); see also State v. Baca,
5 1997-NMSC-059, ¶ 35, 124 N.M. 333, 950 P.2d 776 (“[A] conviction for
6 second-degree murder requires a finding that the defendant knew or should have
7 known his acts created a strong probability of death or great bodily harm.”).
8 Insofar as Olivia died of an unusual type of internal injury, Defendant claims
9 that her death was unforeseeable. We are unpersuaded. Although carotid artery
10 dissection may be an uncommon occurrence, Defendant’s inability to foresee the
11 precise biological cause of Olivia’s death is insignificant. As previously stated, the
12 evidence that Defendant repeatedly struck Olivia with sufficient force to cause over
13 twenty observable injuries, including numerous wounds about the head, neck, and
14 chest, is sufficient to establish that Defendant knew or should have known that his acts
15 created a strong probability of death or great bodily harm. The fact that a relatively
16 obscure form of internal injury was the ultimate cause of death is essentially
17 irrelevant. See, e.g., State v. Garcia, 61 N.M. 291, 295, 298, 299 P.2d 467, 469, 472
18 (1956) (upholding a conviction for second degree murder where the victim died after
9 1 the defendant savagely beat him, ultimately causing a rupture in the vena cava which
2 led to massive internal bleeding).
3 Defendant further relies on Garcia for the proposition that “[m]alice raising the
4 grade of a homicide from manslaughter to murder will ordinarily not be inferred from
5 a blow with the fist” because “death is not the natural or probable result of a blow with
6 the hand.” Id. at 297, 299 P.2d at 470-71. Although this may be true in the abstract,
7 this case does not involve “a blow with the fist,” but rather a very large number of
8 blows to vulnerable areas, which caused both external and internal injuries. This
9 circumstance also distinguishes the present case from the various out-of-state
10 authorities cited by Defendant and renders unavailing the attempted extrapolation
11 from our jurisprudence on the use of deadly force in response to simple batteries.
12 As Garcia illustrates, evidence of excessive force or extreme brutality may
13 support an inference of knowledge. Id. at 297, 299 P.2d at 471. In this case, given the
14 number and extent of Olivia’s injuries, we conclude that the inference of knowledge
15 is well supported.
16 CONCLUSION
17 For the foregoing reasons, we reject Defendant’s challenge to the sufficiency
18 of the evidence. Defendant’s conviction is therefore affirmed.
19 IT IS SO ORDERED.
10 1 2 CYNTHIA A. FRY, Chief Judge
3 WE CONCUR:
4 5 MICHAEL D. BUSTAMANTE, Judge
6 7 JONATHAN B. SUTIN, Judge