This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 35,295
5 ALONZO RODRIGUEZ PEREZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 James M. Hudson, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM
11 for Appellee
12 L. Helen Bennett, Contract Counsel for the 13 Law Office of the Public Defender 14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 BUSTAMANTE, Judge. 1 {1} Defendant Alonzo Perez appeals from his conviction by jury of aggravated
2 assault on a peace officer, contrary to NMSA 1978, Section 30-22-22(A)(1) (1971),
3 as set forth in the judgment and sentence, entered on November 5, 2015. [RP 180; see
4 also DS 2] In our notice of proposed disposition, we proposed to summarily affirm.
5 Defendant filed a memorandum in opposition, which we have duly considered.
6 Remaining unpersuaded, we affirm Defendant’s conviction.
7 Issue 1: Exclusion of Testimony on Officer’s Background
8 {2} In his memorandum in opposition, Defendant continues to argue that the district
9 court erred in not allowing him to examine the background of Victim, the police
10 officer, including the fact that Victim is no longer a police officer. [MIO 2]
11 Specifically, Defendant contends that circumstances regarding Victim’s employment
12 and the actions he took subsequent to the incident with Defendant pertain to casting
13 doubt on Victim’s credibility regarding his alleged fear of Defendant, which is an
14 essential element of aggravated assault. [MIO 2] However, as set forth in detail in this
15 Court’s notice of proposed disposition, the jury instructions do not require that Victim
16 have fear of Defendant—only that, as pertinent to this discussion, Defendant’s
17 conduct caused Victim to believe Defendant was about to intrude on his bodily
18 integrity or personal safety by touching or applying force to Victim in a rude, insolent
19 or angry manner, and that Defendant’s conduct threatened the safety of Victim. [CN
2 1 4–5; see also 2 RP 147] See§ 30-22-22, UJI 14-2201 NMRA. These requirements do
2 not require a showing of fear—rather, they only require evidence that Victim believed
3 Defendant was about to intrude upon him and that Defendant’s conduct threatened the
4 safety of Victim. [2 RP 147] See § 30-22-22, UJI 14-2201. Thus, whether Victim was
5 in fact afraid of Defendant is not relevant to the crime charged. Moreover, Defendant
6 has not provided any evidence that indicates that Victim’s termination from
7 employment related to his fear or lack thereof of Defendant, and the example cited by
8 Defendant is speculative and hypothetical in nature. [MIO 2–3] See State v. Hanson,
9 2015-NMCA-057, 348 P.3d 1070 (“The mere assertions and arguments of counsel are
10 not evidence.” (internal quotation marks and citation omitted)).
11 {3} As Defendant has made no other argument explaining how or why Victim’s
12 employment or lack thereof is relevant to Defendant’s conviction of aggravated
13 assault on a peace officer, he has failed to meet his burden of demonstrating error with
14 regard to this issue. See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981
15 P.2d 1211 (stating that “[t]here is a presumption of correctness in the district court’s
16 rulings,” and “it is [the d]efendant’s burden on appeal to demonstrate any claimed
17 error below” (alterations, internal quotation marks, and citation omitted)). We
18 therefore conclude that the district court did not err in excluding this examination.
19 Issue 2: Sufficiency of the Evidence
3 1 {4} Defendant also continues to argue that there was insufficient evidence to
2 convict him of aggravated assault on a peace officer. [MIO 3] Defendant raises no
3 new arguments or facts that are not otherwise addressed by this Court’s notice of
4 proposed disposition, so we refer Defendant to our responses therein. [CN 3–8] See
5 Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our
6 courts have repeatedly held that, in summary calendar cases, the burden is on the party
7 opposing the proposed disposition to clearly point out errors in fact or law.”). We
8 therefore conclude that there was sufficient evidence to uphold Defendant’s
9 conviction.
10 Issue 3: Admission of Testimony Regarding Purported Uncharged Conduct
11 {5} Finally, Defendant continues to argue that the district court erred in allowing
12 testimony regarding purported uncharged conduct—specifically, what occurred in the
13 bedroom after Defendant assaulted Victim. [See MIO 3–4] Defendant contends that
14 the initial threshold for admissibility of prior uncharged conduct was not met. [MIO
15 3] “Admission of evidence is within the sound discretion of the trial court and the
16 trial court's determination will not be disturbed in the absence of an abuse of that
17 discretion.” State v. Aguayo, 1992-NMCA-044, ¶ 17, 114 N.M. 124, 835 P.2d 840.
18 “The initial threshold for admissibility of prior uncharged conduct is whether it is
19 probative on any essential element of the charged crime.” State v. Gallegos, 2007-
4 1 NMSC-007, ¶ 35, 141 N.M. 185, 152 P.3d 828 (internal quotation marks and citation
2 omitted).
3 {6} Defendant objected to testimony from Victim that, after Defendant’s assault on
4 Victim, he re-entered the bedroom and assaulted a woman. [MIO 4] Defendant
5 contends that this “could only have been offered to show that [Defendant] was a
6 violent person who was committing assaults on all present before he was shot.” [MIO
7 4] Defendant thus argues that the State improperly used the testimony as character
8 evidence and that the threshold inquiry was not met. [MIO 4] However, the conduct
9 in fact shows Defendant’s intentional actions, including his use of the knife, and
10 explains why the knife would have been recovered in the bedroom rather than in the
11 hallway. [See CN 5–6, 8; 2 RP 147–48] See Aguayo, 1992-NMCA-044, ¶ 21 (stating
12 that “[t]here is no question that evidence of prior crimes, wrongs, or acts can be
13 probative of intent and therefore specifically excepted under Rule 404(B)”). We
14 additionally note that, in our notice of proposed disposition, we stated that Defendant
15 failed to explain what arguments were made by the State regarding the testimony and
16 why the district court overruled Defendant’s objection. [CN 8] As Defendant has still
17 failed to provide this Court with that information, “every presumption is indulged in
18 favor of the correctness and regularity of the trial court’s decision, and the appellate
5 1 court will indulge in reasonable presumptions in support of the order entered.” Reeves
2 v. Wimberly, 1988-NMCA-038, ¶ 21, 107 N.M. 231, 755 P.2d 75.
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 35,295
5 ALONZO RODRIGUEZ PEREZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 James M. Hudson, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM
11 for Appellee
12 L. Helen Bennett, Contract Counsel for the 13 Law Office of the Public Defender 14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 BUSTAMANTE, Judge. 1 {1} Defendant Alonzo Perez appeals from his conviction by jury of aggravated
2 assault on a peace officer, contrary to NMSA 1978, Section 30-22-22(A)(1) (1971),
3 as set forth in the judgment and sentence, entered on November 5, 2015. [RP 180; see
4 also DS 2] In our notice of proposed disposition, we proposed to summarily affirm.
5 Defendant filed a memorandum in opposition, which we have duly considered.
6 Remaining unpersuaded, we affirm Defendant’s conviction.
7 Issue 1: Exclusion of Testimony on Officer’s Background
8 {2} In his memorandum in opposition, Defendant continues to argue that the district
9 court erred in not allowing him to examine the background of Victim, the police
10 officer, including the fact that Victim is no longer a police officer. [MIO 2]
11 Specifically, Defendant contends that circumstances regarding Victim’s employment
12 and the actions he took subsequent to the incident with Defendant pertain to casting
13 doubt on Victim’s credibility regarding his alleged fear of Defendant, which is an
14 essential element of aggravated assault. [MIO 2] However, as set forth in detail in this
15 Court’s notice of proposed disposition, the jury instructions do not require that Victim
16 have fear of Defendant—only that, as pertinent to this discussion, Defendant’s
17 conduct caused Victim to believe Defendant was about to intrude on his bodily
18 integrity or personal safety by touching or applying force to Victim in a rude, insolent
19 or angry manner, and that Defendant’s conduct threatened the safety of Victim. [CN
2 1 4–5; see also 2 RP 147] See§ 30-22-22, UJI 14-2201 NMRA. These requirements do
2 not require a showing of fear—rather, they only require evidence that Victim believed
3 Defendant was about to intrude upon him and that Defendant’s conduct threatened the
4 safety of Victim. [2 RP 147] See § 30-22-22, UJI 14-2201. Thus, whether Victim was
5 in fact afraid of Defendant is not relevant to the crime charged. Moreover, Defendant
6 has not provided any evidence that indicates that Victim’s termination from
7 employment related to his fear or lack thereof of Defendant, and the example cited by
8 Defendant is speculative and hypothetical in nature. [MIO 2–3] See State v. Hanson,
9 2015-NMCA-057, 348 P.3d 1070 (“The mere assertions and arguments of counsel are
10 not evidence.” (internal quotation marks and citation omitted)).
11 {3} As Defendant has made no other argument explaining how or why Victim’s
12 employment or lack thereof is relevant to Defendant’s conviction of aggravated
13 assault on a peace officer, he has failed to meet his burden of demonstrating error with
14 regard to this issue. See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981
15 P.2d 1211 (stating that “[t]here is a presumption of correctness in the district court’s
16 rulings,” and “it is [the d]efendant’s burden on appeal to demonstrate any claimed
17 error below” (alterations, internal quotation marks, and citation omitted)). We
18 therefore conclude that the district court did not err in excluding this examination.
19 Issue 2: Sufficiency of the Evidence
3 1 {4} Defendant also continues to argue that there was insufficient evidence to
2 convict him of aggravated assault on a peace officer. [MIO 3] Defendant raises no
3 new arguments or facts that are not otherwise addressed by this Court’s notice of
4 proposed disposition, so we refer Defendant to our responses therein. [CN 3–8] See
5 Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our
6 courts have repeatedly held that, in summary calendar cases, the burden is on the party
7 opposing the proposed disposition to clearly point out errors in fact or law.”). We
8 therefore conclude that there was sufficient evidence to uphold Defendant’s
9 conviction.
10 Issue 3: Admission of Testimony Regarding Purported Uncharged Conduct
11 {5} Finally, Defendant continues to argue that the district court erred in allowing
12 testimony regarding purported uncharged conduct—specifically, what occurred in the
13 bedroom after Defendant assaulted Victim. [See MIO 3–4] Defendant contends that
14 the initial threshold for admissibility of prior uncharged conduct was not met. [MIO
15 3] “Admission of evidence is within the sound discretion of the trial court and the
16 trial court's determination will not be disturbed in the absence of an abuse of that
17 discretion.” State v. Aguayo, 1992-NMCA-044, ¶ 17, 114 N.M. 124, 835 P.2d 840.
18 “The initial threshold for admissibility of prior uncharged conduct is whether it is
19 probative on any essential element of the charged crime.” State v. Gallegos, 2007-
4 1 NMSC-007, ¶ 35, 141 N.M. 185, 152 P.3d 828 (internal quotation marks and citation
2 omitted).
3 {6} Defendant objected to testimony from Victim that, after Defendant’s assault on
4 Victim, he re-entered the bedroom and assaulted a woman. [MIO 4] Defendant
5 contends that this “could only have been offered to show that [Defendant] was a
6 violent person who was committing assaults on all present before he was shot.” [MIO
7 4] Defendant thus argues that the State improperly used the testimony as character
8 evidence and that the threshold inquiry was not met. [MIO 4] However, the conduct
9 in fact shows Defendant’s intentional actions, including his use of the knife, and
10 explains why the knife would have been recovered in the bedroom rather than in the
11 hallway. [See CN 5–6, 8; 2 RP 147–48] See Aguayo, 1992-NMCA-044, ¶ 21 (stating
12 that “[t]here is no question that evidence of prior crimes, wrongs, or acts can be
13 probative of intent and therefore specifically excepted under Rule 404(B)”). We
14 additionally note that, in our notice of proposed disposition, we stated that Defendant
15 failed to explain what arguments were made by the State regarding the testimony and
16 why the district court overruled Defendant’s objection. [CN 8] As Defendant has still
17 failed to provide this Court with that information, “every presumption is indulged in
18 favor of the correctness and regularity of the trial court’s decision, and the appellate
5 1 court will indulge in reasonable presumptions in support of the order entered.” Reeves
2 v. Wimberly, 1988-NMCA-038, ¶ 21, 107 N.M. 231, 755 P.2d 75.
3 {7} Moreover, when weighed against the potential prejudicial effect of the
4 testimony, see Aguayo, 1992-NMCA-044, ¶ 25 (stating that, “[e]ven if [the
5 d]efendant’s prior actions . . . were probative . . . the court must weigh the probative
6 value against the potential for prejudice”), we cannot say the district court abused its
7 discretion in allowing the testimony. Defendant contends that the prejudicial effect of
8 the testimony was to show that Defendant was violent and has an assaulting character.
9 [See MIO 4] However, the testimony of Defendant’s actions prior to the assault on the
10 woman in the bedroom was, in pertinent part, that Victim heard screaming in the back
11 bedroom; when he approached the back bedroom and reached for the door, the door
12 jerked open and Defendant came out of the bedroom holding a knife; Defendant
13 lunged forward with the knife, and Victim then deployed his taser; another officer
14 heard Victim state that Defendant had a weapon; after Defendant was hit by the taser,
15 he fell back against the wall, then ran back into the bedroom; and a knife was
16 recovered from the bedroom. [DS 3–5] Thus, the additional testimony that, after he
17 was tased, Defendant ran back into the bedroom and assaulted a woman with the
18 knife, does not show a propensity or violent character that was not otherwise evident
6 1 from the testimony otherwise provided to the jury. We therefore conclude that the
2 district court did not err in allowing the testimony.
3 {8} Accordingly, for the reasons stated in our notice of proposed disposition and
4 herein, we affirm Defendant’s conviction.
5 {9} IT IS SO ORDERED.
7 _______________________________________ 8 MICHAEL D. BUSTAMANTE, Judge
9 WE CONCUR:
10 11 JAMES J. WECHSLER, Judge
12 13 TIMOTHY L. GARCIA, Judge