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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 29,568
10 ANGELA J. MILLER,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 13 Thomas A. Rutledge, District Judge
14 Gary K. King, Attorney General 15 Margaret E. McLean, Assistant Attorney General 16 Joel Jacobsen, Assistant Attorney General 17 Santa Fe, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender 20 Will O’Connell, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 WECHSLER, Judge. 1 Defendant appeals from the district court’s judgment and sentence, entered
2 pursuant to a jury trial, by which Defendant was convicted for larceny over $2500.
3 Persuaded that Defendant was denied a fair and impartial jury, but not that insufficient
4 evidence supported its verdict, we issued a notice of proposed summary disposition,
5 proposing to reverse in part and affirm in part. We received responses to our notice
6 from the State and Defendant. With new facts about jury selection provided by the
7 State, we were persuaded that Defendant was not denied a fair trial and remained
8 persuaded that sufficient evidence supported the verdict. We issued a second notice,
9 proposing to affirm. Defendant has filed a second memorandum in opposition to the
10 proposed disposition. We have considered Defendant’s response and remain
11 unpersuaded. We affirm.
12 First, Defendant argues that she was denied a fair trial because she was forced
13 to use peremptory challenges on prospective jurors who should have been excused for
14 cause and because biased jurors served on her jury. [DS 11-12; 2nd MIO 1-5] Second,
15 Defendant challenges the sufficiency of the evidence. [DS 11-12; 2nd MIO 5]
16 Jury Selection
17 Our first notice proposed to reverse and remand for a new trial on the grounds
18 that the district court abused its discretion by denying Defendant’s for cause
19 challenges to two jurors, based on their relationships to the victims, and seating them
2 1 on the jury. We had concerns about the following two seated jurors: Ken Ingram and
2 Rolando Chavarria. In response to our notice, the State argued that those two jurors
3 had lesser relationships with the victims than was represented by Defendant’s
4 docketing statement [State’s MIO 2-3]. It also informed this Court that Defendant
5 could have and did not exercise her peremptory challenges to excuse those jurors and
6 that she had at least one peremptory challenge left unexercised at the end of the jury
7 selection process [Id. 3-13; RP 82-83].
8 Our second notice stated that the case law upon which our first notice relied did
9 not apply to the relationships between the jurors and victims described by the State
10 because it no longer appeared that (1) Mr. Chavarria had an actual, continuing,
11 personal or business relationship that created partiality or that (2) Mr. Ingram had a
12 long-standing personal relationship with the victims that demanded excusal. See
13 Mares v. State, 83 N.M. 225, 226, 490 P.2d 667, 668 (1971) (observing that a juror’s
14 mere acquaintance with a witness is insufficient to establish partiality, but noting that
15 an actual relationship such as holding a charge account with the plaintiff corporation
16 and being an opposing party in garnishment proceedings is sufficient for juror
17 partiality).
18 As we have stated, “the trial court is in the best position to assess a juror’s state
19 of mind, by taking into consideration the juror’s demeanor and credibility. It is within
3 1 the trial court’s discretion as to whether a prospective juror should be excused.” State
2 v. Fry, 2006-NMSC-001, ¶ 10, 138 N.M. 700, 126 P.3d 516 (filed 2005) (internal
3 quotation marks and citation omitted). “We will not disturb the trial court’s decision
4 absent a clear abuse of discretion or a manifest error.” Id. (internal quotation marks
5 and citation omitted).
6 We explained that although it may have been more prudent for the district court
7 to have excused these jurors, we could not say that Defendant clearly demonstrated
8 an abuse of discretion in the district court’s refusing to strike them for cause. See id.
9 In response, Defendant does not assert any additional facts or contradict our
10 understanding of the facts. [2nd MIO 2-3] As a result, we are not persuaded that
11 Defendant has established the proper showing on appeal indicating that he was denied
12 an impartial jury.
13 Furthermore, Defendant did not exercise all of her peremptory challenges in
14 jury selection, and a defendant’s ability to demonstrate prejudice or error surrounding
15 jury selection is diminished when the defendant has not exercised all of his or her
16 peremptory challenges. See Fuson v. State, 105 N.M. 632, 634, 735 P.2d 1138, 1140
17 (1987) (“We hold that prejudice is presumed where, as here, a party is compelled to
18 use peremptory challenges on persons who should be excused for cause and that party
19 exercises all of his or her peremptory challenges before the court completes the
4 1 venire.”); see also Benavidez v. City of Gallup, 2007-NMSC-026, ¶ 12, 141 N.M. 808,
2 161 P.3d 853 (declining to extend the presumption of prejudice in Fuson when the
3 party had a remaining peremptory challenge unexercised and the Court did not know
4 why it was unused); State v. Isiah, 109 N.M. 21, 30, 781 P.2d 293, 302 (1989)
5 (holding that when the defendant did not exercise all of his peremptory challenges,
6 “he cannot claim prejudice for failure to dismiss prospective jurors”), overruled on
7 other grounds by State v. Lucero, 116 N.M. 450, 453-54, 863 P.2d 1071, 1074-75
8 (1993) .
9 As our second notice recounted, Defendant’s docketing statement represented
10 that she exercised all of her peremptory challenges [DS 7-8, 11-12] while the State’s
11 response pointed out that Rule 5-606(D)(1)(C) NMRA requires the defense to have
12 five peremptory challenges, the record reflects Defendant exercised only three, and
13 additional information provides an additional challenge not reflected in the record.
14 [RP 82-83; State’s MIO 1, 3, 6]. We will accept factual representations in the
15 docketing statement as true, unless the record on appeal indicates otherwise. See State
16 v. Calanche, 91 N.M. 390, 392, 574 P.2d 1018, 1020 (Ct. App. 1978). The record
17 suggests that Defendant had two unused peremptory challenges when the court
18 completed the venire, and Defendant has not contradicted the State’s claim or
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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. 29,568
10 ANGELA J. MILLER,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 13 Thomas A. Rutledge, District Judge
14 Gary K. King, Attorney General 15 Margaret E. McLean, Assistant Attorney General 16 Joel Jacobsen, Assistant Attorney General 17 Santa Fe, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender 20 Will O’Connell, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 WECHSLER, Judge. 1 Defendant appeals from the district court’s judgment and sentence, entered
2 pursuant to a jury trial, by which Defendant was convicted for larceny over $2500.
3 Persuaded that Defendant was denied a fair and impartial jury, but not that insufficient
4 evidence supported its verdict, we issued a notice of proposed summary disposition,
5 proposing to reverse in part and affirm in part. We received responses to our notice
6 from the State and Defendant. With new facts about jury selection provided by the
7 State, we were persuaded that Defendant was not denied a fair trial and remained
8 persuaded that sufficient evidence supported the verdict. We issued a second notice,
9 proposing to affirm. Defendant has filed a second memorandum in opposition to the
10 proposed disposition. We have considered Defendant’s response and remain
11 unpersuaded. We affirm.
12 First, Defendant argues that she was denied a fair trial because she was forced
13 to use peremptory challenges on prospective jurors who should have been excused for
14 cause and because biased jurors served on her jury. [DS 11-12; 2nd MIO 1-5] Second,
15 Defendant challenges the sufficiency of the evidence. [DS 11-12; 2nd MIO 5]
16 Jury Selection
17 Our first notice proposed to reverse and remand for a new trial on the grounds
18 that the district court abused its discretion by denying Defendant’s for cause
19 challenges to two jurors, based on their relationships to the victims, and seating them
2 1 on the jury. We had concerns about the following two seated jurors: Ken Ingram and
2 Rolando Chavarria. In response to our notice, the State argued that those two jurors
3 had lesser relationships with the victims than was represented by Defendant’s
4 docketing statement [State’s MIO 2-3]. It also informed this Court that Defendant
5 could have and did not exercise her peremptory challenges to excuse those jurors and
6 that she had at least one peremptory challenge left unexercised at the end of the jury
7 selection process [Id. 3-13; RP 82-83].
8 Our second notice stated that the case law upon which our first notice relied did
9 not apply to the relationships between the jurors and victims described by the State
10 because it no longer appeared that (1) Mr. Chavarria had an actual, continuing,
11 personal or business relationship that created partiality or that (2) Mr. Ingram had a
12 long-standing personal relationship with the victims that demanded excusal. See
13 Mares v. State, 83 N.M. 225, 226, 490 P.2d 667, 668 (1971) (observing that a juror’s
14 mere acquaintance with a witness is insufficient to establish partiality, but noting that
15 an actual relationship such as holding a charge account with the plaintiff corporation
16 and being an opposing party in garnishment proceedings is sufficient for juror
17 partiality).
18 As we have stated, “the trial court is in the best position to assess a juror’s state
19 of mind, by taking into consideration the juror’s demeanor and credibility. It is within
3 1 the trial court’s discretion as to whether a prospective juror should be excused.” State
2 v. Fry, 2006-NMSC-001, ¶ 10, 138 N.M. 700, 126 P.3d 516 (filed 2005) (internal
3 quotation marks and citation omitted). “We will not disturb the trial court’s decision
4 absent a clear abuse of discretion or a manifest error.” Id. (internal quotation marks
5 and citation omitted).
6 We explained that although it may have been more prudent for the district court
7 to have excused these jurors, we could not say that Defendant clearly demonstrated
8 an abuse of discretion in the district court’s refusing to strike them for cause. See id.
9 In response, Defendant does not assert any additional facts or contradict our
10 understanding of the facts. [2nd MIO 2-3] As a result, we are not persuaded that
11 Defendant has established the proper showing on appeal indicating that he was denied
12 an impartial jury.
13 Furthermore, Defendant did not exercise all of her peremptory challenges in
14 jury selection, and a defendant’s ability to demonstrate prejudice or error surrounding
15 jury selection is diminished when the defendant has not exercised all of his or her
16 peremptory challenges. See Fuson v. State, 105 N.M. 632, 634, 735 P.2d 1138, 1140
17 (1987) (“We hold that prejudice is presumed where, as here, a party is compelled to
18 use peremptory challenges on persons who should be excused for cause and that party
19 exercises all of his or her peremptory challenges before the court completes the
4 1 venire.”); see also Benavidez v. City of Gallup, 2007-NMSC-026, ¶ 12, 141 N.M. 808,
2 161 P.3d 853 (declining to extend the presumption of prejudice in Fuson when the
3 party had a remaining peremptory challenge unexercised and the Court did not know
4 why it was unused); State v. Isiah, 109 N.M. 21, 30, 781 P.2d 293, 302 (1989)
5 (holding that when the defendant did not exercise all of his peremptory challenges,
6 “he cannot claim prejudice for failure to dismiss prospective jurors”), overruled on
7 other grounds by State v. Lucero, 116 N.M. 450, 453-54, 863 P.2d 1071, 1074-75
8 (1993) .
9 As our second notice recounted, Defendant’s docketing statement represented
10 that she exercised all of her peremptory challenges [DS 7-8, 11-12] while the State’s
11 response pointed out that Rule 5-606(D)(1)(C) NMRA requires the defense to have
12 five peremptory challenges, the record reflects Defendant exercised only three, and
13 additional information provides an additional challenge not reflected in the record.
14 [RP 82-83; State’s MIO 1, 3, 6]. We will accept factual representations in the
15 docketing statement as true, unless the record on appeal indicates otherwise. See State
16 v. Calanche, 91 N.M. 390, 392, 574 P.2d 1018, 1020 (Ct. App. 1978). The record
17 suggests that Defendant had two unused peremptory challenges when the court
18 completed the venire, and Defendant has not contradicted the State’s claim or
19 explained why the peremptory challenges were left unexercised. Under these
5 1 circumstances, we do not presume Defendant was prejudiced in the use of her
2 peremptory strikes, and Defendant cannot claim she was prejudiced by the court’s
3 failure to excuse the jurors or even claim trial court error in the jurors seated. See
4 Benavidez, 2007-NMSC-026, ¶ 12; Isiah, 109 N.M. at 30, 781 P.2d at 302; Fuson, 105
5 N.M. at 634, 735 P.2d at 1140. As a result, we reject Defendant’s contention that she
6 had a partial jury or that she was improperly required to use peremptory challenges
7 for the jurors about whom she complains on appeal.
8 Sufficiency of the Evidence
9 Defendant challenges the sufficiency of the evidence to support her conviction
10 for felony larceny. [DS 11-12; 1st MIO 1-5] Our first notice recited the evidence on
11 which the jury could reasonably rely to find that the bag in Defendant’s possession
12 was the bag containing the deposits that Mr. Foster placed in the safe and that the
13 same bag was placed on the counter top, opened, the money counted, and then given
14 to police. We explained that from Defendant’s attempts to leave with the bag, evade
15 police involvement, and flee the store, the jury could infer that there was a valuable
16 amount of money in the bag and that Defendant intended to deprive the owner of the
17 money permanently. We noted that our courts have consistently recognized that
18 evidence of flight tends to show consciousness of guilt. See, e.g., State v. Jacobs,
19 2000-NMSC-026, ¶ 15, 129 N.M. 448, 10 P.3d 127.
6 1 In response to our notice, Defendant argued that the witnesses who either
2 observed the bag or handled it assumed, without knowing, that it was the same bag of
3 money taken from Defendant. [1st MIO 2-3] Defendant contended that, because the
4 bag was not conclusively identified as the bag Defendant had in her possession, the
5 value of its contents was not established beyond a reasonable doubt. [Id. at 3] To
6 support her claim that there was insufficient evidence, Defendant argued that the
7 reviewing court must determine whether it can logically and fairly exclude all
8 reasonable doubt of innocence of the crime charged under the facts. [Id. at 5]
9 We pointed out that Defendant did not represent, however, that there was
10 evidence that any other similar or identical bags of money were scattered in the store
11 at that time to prevent a rational juror from finding this element of the crime. We
12 explained that, regardless, we do not reweigh the evidence or “substitute [our]
13 judgment for that of the fact finder as long as there is sufficient evidence to support
14 the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. We
15 “view the evidence in the light most favorable to the guilty verdict, indulging all
16 reasonable inferences and resolving all conflicts in the evidence in favor of the
17 verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
18 Then, “we make a legal determination of whether the evidence viewed in this manner
19 could justify a finding by any rational trier of fact that each element of the crime
7 1 charged has been established beyond a reasonable doubt.” State v. Apodaca, 118
2 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation
3 omitted). The question for us is whether the district court’s “decision is supported by
4 substantial evidence, not whether the court could have reached a different conclusion.”
5 In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318.
6 “[S]ubstantial evidence [is] such relevant evidence as a reasonable mind might accept
7 as adequate to support a conclusion.” State v. Salgado, 1999-NMSC-008, ¶ 25, 126
8 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted).
9 We emphasized that it is the jury’s responsibility to resolve any conflicts in the
10 evidence and that we view the evidence in the light most favorable to the jury’s
11 verdict. See Cunningham, 2000-NMSC-009, ¶ 26. Defendant’s arguments would
12 have us resolving conflicts in the evidence in a manner opposite to the jury’s verdict.
13 The evidence, indicating that the bag of money was viewed in Defendant’s possession,
14 given to police, turned over to Ms. Foster, and placed on a counter top where its
15 contents were counted, is adequate to support the verdict in the reasonable mind of a
16 juror.
17 Defendant’s response to our second notice does not add any new factual or legal
18 argument. We hold that sufficient evidence supports Defendant’s conviction.
19 Conclusion
8 1 For the reasons set forth above, we affirm.
2 IT IS SO ORDERED.
3 ______________________________ 4 JAMES J. WECHSLER, Judge
5 WE CONCUR:
6 _______________________________ 7 CELIA FOY CASTILLO, Judge
8 _______________________________ 9 ROBERT E. ROBLES, Judge