State v. Merhege

2016 NMCA 059, 10 N.M. 146
CourtNew Mexico Court of Appeals
DecidedMay 22, 2014
DocketS-1-SC-34775; Docket 32,461
StatusPublished
Cited by5 cases

This text of 2016 NMCA 059 (State v. Merhege) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Merhege, 2016 NMCA 059, 10 N.M. 146 (N.M. Ct. App. 2014).

Opinion

OPINION

HANISEE, Judge.

{1} Trevor Merhege (Defendant), appeals from his conviction for criminal trespass contrary to NMSA 1978, Section 30-14-l(B) (1995). The crime of criminal trespass is defined in pertinent part as “knowingly entering or remaining upon the unposted lands of another knowing that such consent to enter or remain is denied or withdrawn by the owner or occupant thereof.” Section 30-14-l(B). Defendant asserts that there was insufficient evidence to establish he knew that he lacked consent to enter upon the land of another. Conversely, the State argues that there was sufficient evidence of Defendant’s knowledge, specifically relying on the landowner’s testimony that he had not given Defendant permission to enter upon his land. It further contends that the principles of finality and mootness preclude this Court from reviewing this appeal. We conclude that we have jurisdiction to hear this appeal. Further, we agree with Defendant that the landowner’s testimony was insufficient to establish Defendant’s knowledge and reverse his conviction.

BACKGROUND

{2} The relevant facts are not in dispute. On the night of September 3,2011, Officer Adam Lem of the Portales Police Department was on routine patrol near the intersection of Main Street and East 9th Street. Officer Lem observed Defendant and his friend walking down East 9th Street at approximately 3:40 a.m. Officer Lem got out of his patrol car and yelled, “Hey[,] I want to talk to you.” Defendant and his friend did not stop but instead fled on foot around the corner onto Main Street where they proceeded to hop a fence and cut across a private front yard belonging to Gary Watkins. Defendant’s friend scaled two fences and jumped over to the neighboring property. Defendant attempted the same maneuver but his clothing became entangled in a chain link fence. Officer Lem caught Defendant when he was entangled in the chain link fence, arrested him, and charged him with resisting and evading an officer, a misdemeanor offense. The charge was later amended to criminal trespass.

{3} Defendant filed a motion to suppress in the magistrate court. The magistrate court granted Defendant’s motion and dismissed the case. The State appealed to the district court and Defendant again filed a motion to suppress. After a hearing, the district court denied Defendant’s motion and scheduled the matter for trial. Defendant argued that the matter should be remanded for trial in the magistrate court. The district court rejected this argument and proceeded with a trial.

{4} Officer Lem and Watkins testified on behalf of the State. Watkins testified that he had not given Defendant permission to be on his property on September 3, 2011, and had not, as a matter of “custom or... habit give[n] people permission to cut across his property at that hour” of the morning. Based upon the evidence presented, the jury found Defendant guilty of criminal trespass.

DISCUSSION

{5} Defendant contends the evidence was insufficient to support his conviction. Before we consider the merits of this argument, we first consider the State’s argument that we lack jurisdiction to consider this appeal pursuant to principles of finality and mootness.

I. Finality /Mootness

{6} The State contends that we lack jurisdiction to consider this appeal because Defendant is appealing from an order of conditional discharge pursuant to NMSA 1978, Section 31-20-13(A) (1994). The State asserts that this is a non-final order and that this appeal is moot because Defendant has served his term of probation and been discharged. We disagree.

{7} In State v. Durant, 2000-NMCA-066, ¶ 1, 129 N.M. 345, 7 P.3d 495, we discussed whether a conditional discharge order should be considered final for purposes of appeal. We recognized that courts in other jurisdictions have held that conditional discharge orders are non-final when they are not accompanied by sentences and lack significant collateral consequences. Id. ¶ 9. We drew a distinction between one defendant’s felony case, which could be considered in subsequent habitual offender proceedings, and another defendant’s contempt case, which lacked any collateral consequences. Id. ¶¶ 9-10. We considered the merits of the first defendant’s case and dismissed the second defendant’s case. Id. ¶ 11.

{8} The crime of criminal trespass is a misdemeanor, not a felony, and thus cannot be considered as a prior felony conviction under our habitual offender statute. See § 30-14-1 (E) (defining the crime of criminal trespass as a misdemeanor); NMSA 1978, § 31-18-17(D) (2003) (defining a prior felony conviction for purposes of habitual offender enhancement). Defendant nevertheless contends that he is subject to significant collateral consequences as a result of his conditional discharge. He states that he will be required to disclose the fact of his conviction on applications for employment, college, and other future pursuits. We agree that these are potentially significant consequences even though they are somewhat speculative. See United States ex rel. Grundset v. Franzen, 675 F.2d 870, 873 (7th Cir. 1982) (finding a controversy was not moot, reasoning that “[although the potential legal disabilities facing [the defendant] as a result of his misdemeanor conviction are somewhat more speculative than those facing a convicted felon, the possibility of a disability exists”). We note that a contrary result would effectively immunize the proceedings at trial from appellate review and conclude that we have jurisdiction to consider this appeal.

II. Sufficiency of the Evidence

{9} Turning to the merits, Defendant contends the evidence was insufficient to support his conviction. 1 In reviewing this claim, we examine the record to determine “whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. We “view the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict.” Id.

{10} Defendant was convicted of criminal trespass contrary to Section 3 0-14-1 (B), which defines the crime as “knowingly entering or remaining upon the unposted lands of another knowing that such consent to enter or remain is denied or withdrawn by the owner or occupant thereof.” The jury was instructed that, in order to find Defendant guilty, the State had to prove beyond a reasonable doubt that Defendant “entered property belonging to . . . Watkins without permission” and “knew or should have known that permission to enter had been denied[.]” Defendant contends that the State failed to present sufficient evidence that he knew that Watkins had denied him permission to enter his land.

{11} It is undisputed that W atkins did not give Defendant permission to enter his land.

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Bluebook (online)
2016 NMCA 059, 10 N.M. 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-merhege-nmctapp-2014.