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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 30,427 10 ANDREW OLIVAS, 11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 13 Ralph D. Shamas, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender 18 Susan Roth, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
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1 CASTILLO, Judge. 2 Defendant Andrew Olivas appeals his convictions for aggravated assault 3 (deadly weapon) and conspiracy to commit aggravated assault. This Court filed a 4 notice of proposed summary disposition proposing to affirm. Defendant filed a 5 memorandum in opposition to summary affirmance, which we have duly considered. 6 We affirm the district court. 7 Sufficiency of the Evidence 8 In his first issue, Defendant contends that the verdicts were not supported by 9 substantial evidence. Whether there is sufficient evidence to support a conviction is 10 a question of law which we review de novo. State v. Neatherlin, 2007-NMCA-035, 11 ¶ 8, 141 N.M. 328, 154 P.3d 703. “Substantial evidence is relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” State v. Rojo, 13 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “The State must offer sufficient 14 evidence to prove each element of the crime charged, beyond a reasonable doubt.” 15 State v. Baca, 1997-NMSC-059, ¶ 13, 124 N.M. 333, 950 P.2d 776. “This Court 16 evaluates the sufficiency of the evidence in a criminal case by viewing the evidence 17 in the light most favorable to the verdict, resolving all conflicts and indulging all 18 permissible inferences to uphold the conviction, and disregarding all evidence and 19 inferences to the contrary.” State v. Treadway, 2006-NMSC-008, ¶ 7, 139 N.M. 167,
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1 130 P.3d 746. “We will not substitute our judgment for that of the fact finder, nor will 2 we re-weigh the evidence.” Id. 3 As relevant to this case, assault consists of “any unlawful act, threat or 4 menacing conduct which causes another person to reasonably believe that he is in 5 danger of receiving an immediate battery[.]” NMSA 1978, § 30-3-1(B) (1963). 6 “Aggravated assault consists of . . . unlawfully assaulting or striking at another with 7 a deadly weapon[.]” NMSA 1978, § 30-3-2(A) (1963). The jury was instructed that 8 to find Defendant guilty of aggravated assault by use of a deadly weapon, the State 9 had to prove to the jury’s satisfaction beyond a reasonable doubt each of the following 10 elements:
11 1. The defendant threatened to shoot Servando Arrellanes; 12 2. The defendant’s conduct caused Servando Arrellanes to 13 believe the defendant was about to intrude on Servando Arrellanes[’s] 14 bodily integrity or personal safety by touching or applying force to 15 Servando Arrellanes in a rude, insolent or angry manner; 16 3. A reasonable person in the same circumstances as Servando 17 Arrellanes would have had the same belief; 18 4. The defendant used a firearm; 19 5. This happened in New Mexico on or about the 28th day of 20 September, 2008.
21 [RP 124] See UJI 14-305 NMRA. 22 “Conspiracy consists of knowingly combining with another for the purpose of 23 committing a felony within or without this state.” NMSA 1978, § 30-28-2(A) (1979). 24 In this case, the felony was aggravated assault as described above. The jury was
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1 instructed that to find Defendant guilty of conspiracy to commit aggravated assault by 2 use of a deadly weapon, the State had to prove to the jury’s satisfaction beyond a 3 reasonable doubt each of the following elements:
4 1. The defendant and another person by words or acts agreed 5 together to commit aggravated assault with a deadly weapon; 6 2. The defendant and the other person intended to commit 7 aggravated assault; 8 3. This happened in New Mexico on or about the 28th day of 9 September, 2008.
10 [RP 125] See UJI 14-2810 NMRA. Proof of conspiracy may be established by 11 inference from circumstantial evidence. State v. Hernandez, 1997-NMCA-006, ¶ 41, 12 122 N.M. 809, 932 P.2d 499. “The primary question is whether circumstances, taken 13 together, show the parties united to accomplish an illegal scheme.” Id. 14 Servando Arrellanes, the victim, testified to the following at trial. He had dated 15 Defendant’s sister one or two years before the date of the incident, but they had 16 broken up. [DS 3] Arrellanes did not like Defendant and believed the shooting was 17 related to his breakup with Defendant’s sister. [Id.] Defendant had burst into the 18 house where Arrellanes and others were drinking. [DS 4] Defendant had a handgun 19 and was accompanied by Joe Jacob, who had a shotgun. [Id.] Defendant began to 20 fight with Arrellanes, in the course of which shots were fired. [Id.] 21 Natasha Sanchez testified that Defendant had picked up his gun and fired shots 22 at Arrellanes. [DS 6] Yuseli Cabral testified that she had seen Defendant and Joe
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1 Jacob burst through the door of the house and that she had heard two shots. [DS 7] 2 Her testimony that Defendant had a big gun and Jacob had a little gun was 3 inconsistent with Arrellanes’s testimony that Jacob had a shotgun. [Id.] Josie 4 Ramirez testified that she heard a kick on the door and that Defendant came in first 5 with a 9mm pistol. [DS 9] 6 The evidence set forth above is consistent with a scenario in which Defendant 7 or Joe Jacob kicked in the door of the house where Arrellano was and that Defendant 8 entered with a pistol drawn. Servando Arrellanes or any reasonable person in the 9 circumstances would have believed Defendant was about to intrude on his or her 10 bodily integrity or personal safety by touching or applying force in a rude, insolent or 11 angry manner. Accordingly, we conclude that substantial evidence supported 12 Defendant’s conviction for aggravated assault by deadly weapon. Further, from 13 circumstances described in the testimony, such as the fact that Defendant and Joe 14 Jacob arrived at the same time and brandished guns, the jury could infer that the two 15 had conspired to commit the assault. We affirm the district court on this issue. 16 Questioning by the Judge 17 Defendant’s second issue asks whether the judge’s questioning of Defendant’s 18 friend was prejudicial. As described in the amended docketing statement, the friend, 19 Stephen Castillo, testified that he had gone to the house where the incident occurred
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1 with Defendant and Joe Jacob in Jacob’s car. [DS 5, 10] He stayed outside talking 2 to some girls while the Defendant and Jacob went inside. [DS 10] He heard two 3 shots. [Id.] Although he had been a passenger in Jacob’s car when he arrived, he 4 drove the car when he left with Defendant and Jacob. [Id.] After Castillo had so 5 testified, the judge asked him how he ended up driving the car. [Id.] Castillo 6 responded that he was not sure, upon which the judge said, “Get down. Go ahead. 7 May he be excused?” [DS Amendment, Exh. A] The docketing statement 8 characterizes the judge’s questioning as “question[ing] the witness’s credibility.” [DS 9 10] 10 Defendant acknowledges that his objection to the judge’s questioning of 11 Castillo was not preserved at trial. [DS 13] “An exception to the general rule barring 12 review of questions not properly preserved below . . . applies in cases which involve 13 fundamental error.” State v. Varela, 1999-NMSC-045, ¶ 11, 128 N.M. 454, 993 P.2d 14 1280 (internal quotation marks and citation omitted); see Rule 12-216(B) NMRA. 15 “Fundamental error may be resorted to if the question of guilt is so doubtful that it 16 would shock the conscience to permit the conviction to stand, or if substantial justice 17 has not been done.” State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991) 18 (internal quotation marks and citations omitted). 19 Rule 11-614(B) NMRA provides that “[t]he court may interrogate witnesses,
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1 whether called by itself or by a party; provided, however, that in trials before a jury, 2 the court’s questioning must be cautiously guarded so as not to constitute an implied 3 comment.” “A trial judge . . . may properly propound questions to the witnesses, so 4 long as he keeps the same within the bounds demanded of him by his position as trial 5 judge, and so long as he displays no bias against or favor for either of the litigants.” 6 State v. Sedillo, 76 N.M. 273, 275, 414 P.2d 500, 501 (1966). 7 We conclude that the judge’s questioning of Stephen Castillo did not amount 8 to an implied comment on his credibility. It strikes us as more of a request for 9 clarification, as it is reasonable in the context to want to know why Jacob asked, told, 10 or allowed Castillo to drive. More pertinent to the fundamental error standard of 11 review, however, is that several witnesses’ testimony strongly supported the jury’s 12 finding Defendant guilty of aggravated assault and conspiracy. Accordingly, we 13 conclude that Defendant’s guilt is not so doubtful that it would shock the conscience 14 to permit his conviction to stand. 15 CONCLUSION 16 For the reasons stated above, we affirm the district court. 17 IT IS SO ORDERED.
18 ___________________________________ 19 CELIA FOY CASTILLO, Judge
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1 WE CONCUR:
2 __________________________________ 3 CYNTHIA A. FRY, Chief Judge
4 __________________________________ 5 RODERICK T. KENNEDY, Judge