State v. Urquizo

• Court: New Mexico Court of Appeals
• Decided: January 20, 2011
• Docket: 30,681
• Status: Unpublished

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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,681

10 GUADALUPE URQUIZO,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 13 Teddy L. Hartley, District Judge

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

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Kathleen T. Baldridge, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 KENNEDY, Judge.

23 Defendant appeals his conviction for aggravated battery (deadly weapon). We

24 issued a calendar notice proposing to affirm. Defendant has responded with a

25 memorandum in opposition. We affirm. 2 1 MOTION FOR CONTINUANCE

2 Defendant continues to claim that the district court should have granted him a

3 continuance to further review a videotape and to interview witnesses who may have

4 overheard a conversation involving the victim. [MIO 4] The granting or denial of a

5 continuance is within the sound discretion of the trial court, and the burden of

6 establishing abuse of discretion rests with the appellant. See State v. Sanchez, 120

7 N.M. 247, 253, 901 P.2d 178, 184 (1995).

8 With respect to the videotape of the incident, Defendant argued that he received

9 it less than one week before trial, and he needed more time to review it and discuss it

10 with Defendant and possible witnesses. [MIO 5] Defendant does not specify that

11 there was anything in the record that supports the view that their testimony would

12 have been helpful to the defense. [MIO 8-9] Defendant testified that he merely

13 threatened Victim with the broom, and did not hit him. [MIO 4] There is no indication

14 that any witnesses would have refuted the videotaped evidence. Accordingly, we

15 conclude that any prejudice from the denial of his motion is too speculative to

16 constitute reversible error. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121

17 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”).

18 With respect to any out-of-court statements made by Victim, Defendant

19 indicates that the court decided a continuance was not necessary after hearing the in

3 1 camera testimony of a detention officer concerning the statements. [MIO 5] As we

2 stated in our calendar notice, it appears that this post-incident comment would have

3 had little probative value, and defense counsel could have asked Victim about it on

4 cross-examination. See State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d

5 829 (noting that an abuse of discretion occurs when the ruling is clearly against the

6 logic and effect of the facts and circumstances of the case.).

7 SUFFICIENCY OF THE EVIDENCE

8 Defendant has argued that the district court erred in denying his motion for a

9 directed verdict on the deadly weapon element of the assault charge. “The question

10 presented by a directed verdict motion is whether there was substantial evidence to

11 support the charge.” State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct.

12 App. 1993). A sufficiency of the evidence review involves a two-step process.

13 Initially, the evidence is viewed in the light most favorable to the verdict. Then the

14 appellate court must make a legal determination of “whether the evidence viewed in

15 this manner could justify a finding by any rational trier of fact that each element of the

16 crime charged has been established beyond a reasonable doubt.” State v. Apodaca,

17 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation

18 omitted).

4 1 Defendant’s specific challenge is whether a broom handle can be considered a

2 deadly weapon. [MIO 9] It is well-established that “[w]here the instrument used is not

3 one declared by the statute to be a deadly weapon, it is ordinarily a question for the

4 jury to determine whether it is so, considering the character of the instrument and the

5 manner of its use.” State v. Traeger, 2001-NMSC-022, ¶ 16, 130 N.M. 618, 29 P.3d

6 518 (alteration in original) (internal quotation marks and citation omitted). In making

7 this determination, the jury must decide whether the object or instrument is a “weapon

8 which is capable of producing death or great bodily harm” or a weapon “with which

9 dangerous thrusts can be inflicted.” NMSA 1978, § 30-1-12(B) (1963); UJI 14-322

10 NMRA; State v. Anderson, 2001-NMCA-027, ¶ 15, 130 N.M. 295, 24 P.3d 327. As

11 Defendant appears to acknowledge [MIO 12], our case law is clear that an object such

12 as a broom handle may constitute a deadly weapon. See e.g., id. ¶¶ 10, 14

13 (interpreting Section 30-1-12(B) in the context of a charge of aggravated stalking with

14 a stick as a deadly weapon); Traeger, 2001-NMSC-022, ¶ 10 (interpreting Section

15 30-1-12(B) in the context of a charge of aggravated battery with a baseball bat as a

16 deadly weapon). In short, a broom handle is capable of inflicting dangerous wounds.

17 For the reasons set forth above, we affirm.

18 IT IS SO ORDERED.

5 1 2 RODERICK T. KENNEDY, Judge

3 WE CONCUR:

4 5 MICHAEL D. BUSTAMANTE, Judge

6 7 ROBERT E. ROBLES, Judge