State v. Rivera

Opinion

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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,441 10 ROSANNA “KIM” RIVERA, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 George F. Eichwald, District Judge

14 Gary K. King, Attorney General 15 Santa FE, NM

16 for Appellee

17 Jacqueline L. Cooper, Acting Chief Public Defender 18 Eleanor Brogan, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant 21 MEMORANDUM OPINION 22 FRY, Judge. 23 Defendant was convicted of fourteen counts of forgery for writing checks 24 against her mother’s checking account without her permission. Defendant raises three

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1 issues on appeal: (1) whether the district court erred in admitting three Bank of 2 America letters, (2) whether the district court erred when it allowed the State to argue 3 that Bank of America was a victim of the forgery, and (3) whether there was sufficient 4 evidence to convict Defendant at trial. This Court issued a calendar notice proposing 5 to affirm Defendant’s convictions. Defendant has filed a memorandum in opposition 6 to this Court’s proposed disposition, which we have duly considered. Unpersuaded, 7 we affirm. 8 Admission of the Letters 9 Defendant contends that the district court erred by permitting the admission of 10 three Bank of America letters in which the Bank alleged that fraudulent activity had 11 occurred. In her docketing statement, Defendant argued that the admission of the 12 letters intruded on the province of the jury because the letters contained a conclusion 13 that the crime of fraud had occurred. We issued a calendar notice proposing to 14 conclude that the district court did not abuse its discretion in admitting the letters since 15 the jury was still required to find each of the elements of forgery and the letters did 16 not contain any conclusions regarding whether the crime of forgery had occurred. 17 In Defendant’s memorandum in opposition, she clarifies that the letters just 18 state generally that a crime has occurred and do not allege either that the specific 19 crime of fraud or forgery has been committed. [MIO 4] Defendant, however,

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1 maintains that the conclusion contained in the letters that a crime has occurred invaded 2 the province of the jury and created a reasonable probability that the jury’s verdict was 3 affected by the erroneously admitted letters. [MIO 5] Defendant states that it was the 4 State’s burden to prove that she made a false signature and intended to deceive or 5 cheat her mother, Theresa Arellanes, or another, and argues that the admission of the 6 letters resolved these issues for the jury. 7 We disagree. According to Defendant’s description of the letters, the letters do 8 not contain any statement that Defendant made a false signature or intended to deceive 9 or cheat her mother. The mere fact that the letters state that fraudulent activity had 10 occurred with respect to Arellanes’s account does not resolve the ultimate issue of 11 whether Defendant committed the crime of forgery. Because Defendant has not 12 provided this Court with any authority in her memorandum in opposition that would 13 support a different conclusion, we conclude that the district court did not abuse its 14 discretion in admitting the letters. See State v. Ibarra, 116 N.M. 486, 489, 864 P.2d 15 302, 305 (Ct. App. 1993) (“A party opposing summary disposition is required to come 16 forward and specifically point out errors in fact and/or law.”); In re Adoption of Doe, 17 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (providing that if no authority is cited 18 in support of the issue we assume no such authority exists). 19 Due Process

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1 Defendant contends pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 2 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), that the district 3 court violated Defendant’s right to due process when it permitted the State to 4 implicitly argue that Bank of America was the victim of the forgery. We issued a 5 calendar notice in which we noted that procedural due process requires the State “to 6 provide reasonable notice of charges against a person and a fair opportunity to 7 defend.” [CN 3 (quoting State v. Baldonado, 1998-NMCA-040, ¶ 21, 124 N.M. 745, 8 955 P.2d 214)] We also noted that the indictment identified the date of the alleged 9 forgery, that Defendant made a false endorsement, the last four digits of the account 10 against which the endorsement was made, and that the victim was “Theresa Arellanes 11 or another.” [CN 4; RP 1] We proposed to conclude, based on this information, that 12 the indictment contained sufficient particularity to satisfy due process. [CN 4] 13 In her memorandum in opposition, Defendant continues to argue that her due 14 process rights were violated because she did not have a fair opportunity to prepare a 15 defense. Specifically, Defendant argues that her defense was that she never intended 16 to defraud her mother and was “paying on the loans.” [MIO 6] Defendant contends 17 that the State implicitly arguing that the Bank was the victim was a critical variance 18 from the indictment. [MIO 6]

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1 In this Court’s calendar notice we pointed out that, to the extent Defendant was 2 arguing that the failure to specifically name the Bank in the indictment violated her 3 due process rights, Defendant had not provided this Court with any case indicating 4 that these facts constitute a due process violation. [CN 4] In her memorandum in 5 opposition, Defendant still provides this Court with no relevant authority. Instead, 6 Defendant merely rests her argument on the same general principle of law this Court 7 quoted above. This Court operates under a presumption of correctness in the rulings 8 or decisions of the trial court, and the party claiming error bears the burden of 9 showing such error. State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 10 1211. We conclude that Defendant has failed to satisfy this burden. 11 Insufficient Evidence 12 Defendant contends pursuant to Franklin and Boyer that there was insufficient 13 evidence to support her convictions. We proposed to conclude that, based on 14 Defendant’s testimony that she wrote the checks on her mother’s account and 15 Arellanes’s testimony that she had not given Defendant permission to do so, was 16 sufficient to support Defendant’s convictions for forgery. [CN4-5] In her docketing 17 statement, Defendant directed this Court to her testimony that she had permission 18 from Arellanes to write the checks, and that Arellanes was alleging Defendant’s 19 signature was unlawful because of a family property dispute between Defendant and

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1 Arellanes. [DS 3-4] In this Court’s calendar notice, we pointed out that “[c]ontrary 2 evidence supporting acquittal does not provide a basis for reversal because the jury 3 is free to reject Defendant’s version of the facts.” [CN 5 (quoting State v. Rojo, 1999- 4 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829)] 5 In her memorandum in opposition, Defendant relies on State v. Sizemore, 115 6 N.M. 753, 756, 858 P.2d 420, 423 (Ct. App. 1993), for the proposition that this Court 7 should consider Defendant’s explanation for her conduct. We conclude that 8 Defendant’s reliance on Sizemore as requiring reversal in this case is misplaced. 9 Sizemore addresses whether the State presented sufficient evidence to prove 10 constructive possession. To the extent Sizemore involves conflicting testimony it is 11 in relation to whether the defendant slept in the bedroom where two stolen knives 12 were later found. The defendant’s mother claimed that the defendant had slept in the 13 bedroom the night before the police searched the premises, and the defendant claimed 14 she had slept on the living room couch. This Court concluded that, even if the 15 defendant had slept in the room the night before the search, this fact was legally 16 insufficient to establish constructive possession. Id. at 758, 858 P.2d at 425. 17 Unlike Sizemore, the evidence presented by the State in this case is not legally 18 insufficient. Rather, in the present case, Defendant is pointing out that there is 19 conflicting testimony with respect to her intent. Defendant contends that she had

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1 permission to write the checks and Arellanes testified that she did not. To the extent 2 that this testimony is conflicting, we must view the evidence in the light most 3 favorable to the verdict, resolving all conflicts and indulging all reasonable inferences 4 in favor of the verdict. State v. Apodoca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 5 (1994). Consequently, we conclude that there was sufficient evidence to support 6 Defendant’s convictions. 7 CONCLUSION 8 For the reasons stated above and in this Court’s notice of proposed disposition, 9 we affirm Defendant’s convictions. 10 IT IS SO ORDERED.

11 12 CYNTHIA A. FRY, Judge

13 WE CONCUR:

14 15 CELIA FOY CASTILLO, Chief Judge

16 17 JONATHAN B. SUTIN, Judge