State v. Soto

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 32,245 5 RAUL SOTO, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Lisa C. Schultz, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION 1 CASTILLO, Chief Judge. 2 Raul Soto (Defendant) appeals from the judgment and order partially 3 suspending his sentence. [RP 200] Defendant was convicted after a jury trial of 4 robbery, a third degree felony, and bribery of a witness (threats) (reporting), a third 5 degree felony. [Id.] Defendant contends that the State did not present sufficient 6 evidence for the jury to conclude beyond a reasonable doubt that Defendant was guilty 7 of the convicted offenses. [DS 9] The calendar notice proposed summary affirmance. 8 [Ct. App. File, CN1] Defendant has filed a memorandum in opposition that we have 9 duly considered. [Ct. App. File, MIO] Unpersuaded, however, we affirm Defendant’s 10 convictions. 11 DISCUSSION 12 “The test for sufficiency of the evidence is whether substantial evidence of 13 either a direct or circumstantial nature exists to support a verdict of guilt beyond a 14 reasonable doubt with respect to every element essential to a conviction.” State v. 15 Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks 16 and citation omitted). When considering the sufficiency of the evidence, this Court 17 “does not evaluate the evidence to determine whether some hypothesis could be 18 designed which is consistent with a finding of innocence.” State v. Graham, 19 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and 1 citation omitted). Instead, “[w]e view the evidence as a whole and indulge all 2 reasonable inferences in favor of the jury’s verdict,” id., while at the same time asking 3 whether “any rational trier of fact could have found the essential elements of the crime 4 beyond a reasonable doubt,” id. ¶ 7 (internal quotation marks and citation omitted). 5 We measure the sufficiency of the evidence against the jury instructions. See 6 State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App. 1986) (“Jury 7 instructions become the law of the case against which the sufficiency of the evidence 8 is to be measured.”). The jury was instructed that in order to find Defendant guilty of 9 robbery as charged in Count 1, it must find the following elements of the crime 10 beyond a reasonable doubt: (1) Defendant took and carried away a CD player, U.S. 11 currency, and/or a jacket from Steven Cabrales (the victim), or from his immediate 12 control, intending to permanently deprive the victim of the property; (2) Defendant 13 took the CD player, U.S. currency and/or jacket by force or violence; and (3) this 14 happened in New Mexico on or about December 16, 2008. [RP 178] 15 The jury was also instructed that in order find Defendant guilty of intimidation 16 of a witness, it must find the following elements of the crime beyond a reasonable 17 doubt: (1) Defendant knowingly intimidated or threatened with intent to keep the 18 victim from truthfully reporting to a law enforcement officer information related to 19 the commission or possible commission of robbery; and (2) this happened in New 1 Mexico on or about December 16, 2008. [RP 180] The jury was also instructed that 2 Defendant may be found guilty of a crime even though he himself did not do the acts 3 constituting the crime if the State proves beyond a reasonable doubt that (1) Defendant 4 intended the crime be committed; (2) the crime was committed; and (3) Defendant 5 helped, encouraged, or caused the crime to be committed. [RP 181] I n t h e 6 memorandum, Defendant confirms that the State presented the following testimony 7 to support Defendant’s convictions for robbery and intimidation of a witness. On or 8 about December 16, 2008, Defendant, Daniel Pena, and the victim were at a party at 9 Frances Gonzales’s house drinking several beers. [DS 4, MIO 1] The foursome 10 continued drinking throughout the evening and later decided to move on to another 11 party at Defendant’s house. [Id.] The victim and Ms. Gonzales arrived in the victim’s 12 car at Defendant’s house near midnight. [Id.] Ms. Gonzales left the victim’s car and 13 subsequently told him she was going to party with Mr. Pena and Defendant. [Id.] As 14 the victim was leaving, Mr. Pena approached his vehicle and argued about why Ms. 15 Gonzales was with the victim when Mr. Pena was dating Ms. Gonzales. [DS 5, MIO 16 2] The victim drove off but then turned around to go back; he saw Defendant’s car 17 was blocking the road. [Id.] Mr. Pena approached the victim’s car and hit the victim 18 in the head in the temple area. [Id.] The victim became disoriented, crashed his car, 19 and then exited the vehicle. [Id.] Mr. Pena and the victim then traded blows. [DS 5-

1 6, MIO 2] The victim testified that while he was fighting Mr. Pena, someone struck 2 him from behind and he fell to the ground. [DS 6, MIO 2] The victim then saw and 3 felt Mr. Pena and Defendant kicking and striking him. [Id.] The victim testified that 4 Defendant then told Mr. Pena to take the CD player out of the victim’s car; Defendant 5 demanded and took all the money the victim had on him (about $50); and Defendant 6 told the victim not to call the cops because “we’ll get you and your family.” [Id.] The 7 investigating officer testified that there were beer cans strewn on the premises and that 8 the victim had injuries on his temple, scratches on his back, and blood behind his left 9 ear. [DS 7, MIO 3] Ms. Gonzales testified that she saw Defendant and Mr. Pena take 10 the victim’s stereo and his jacket and that Defendant later admitted that he took $50 11 from the victim. [DS 8, MIO 3] After the State presented its evidence, Defendant 12 twice moved for a directed verdict. [DS 8] The district court denied Defendant’s 13 motions and the defense rested. [Id.] Based on the summary of the trial 14 evidence presented in the docketing statement, we proposed to affirm Defendant’s 15 convictions. [Ct. App. File, CN1] In the memorandum, Defendant does not present 16 facts or authorities that persuade us that the proposed disposition was incorrect or 17 inappropriate. Rather, Defendant points out that, on cross-examination, Ms. 18 Gonzales’s admitted that she had consumed at least twelve beers the night of the 19 incidents and that she later stated that she did not see Defendant or Mr. Pena with the 1 victim’s car stereo or jacket. [MIO 3] These considerations, however, relate to the 2 weight and credibility of Ms. Gonzales’ testimony, which are matters for the jury to 3 decide, and, as such, they do not provide a basis for this Court to reverse the jury’s 4 verdict. See State v. Riggs, 114 N.M. 358, 362-63, 838 P.2d 975, 979-80 (1992) 5 (rejecting the defendant’s argument that a witness was not credible, stating “[t]he jury, 6 and not this court, however, resolves questions of credibility and the weight to be 7 given to testimony”). Moreover, in addition to Ms. Gonzales’s testimony, the 8 victim’s testimony as to what he saw and felt that night provided substantial evidence, 9 which the jury adjudged as credible, to support Defendant’s convictions. 10 CONCLUSION 11 We hold that the State presented substantial evidence to support Counts 1 and 12 3, and we therefore affirm Defendant’s convictions. 13 IT IS SO ORDERED.

14 __________________________________ 15 CELIA FOY CASTILLO, Chief Judge

16 WE CONCUR:

17 __________________________________ 18 CYNTHIA A. FRY, Judge 1 __________________________________ 2 TIMOTHY L. GARCIA, Judge