State v. Varela

• Court: New Mexico Court of Appeals
• Decided: August 20, 2012
• Docket: 32,196
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 32,196

5 MARTHA O. VARELA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 8 Daniel Viramontes, 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 Defendant Martha Varela appeals her convictions after jury trial for two counts

3 of forgery in violation of NMSA 1978, Section 30-16-10(A) (2006), two counts of

4 theft of identity in violation of NMSA 1978, Section 30-16-24.1 (2009), and one

5 count of fraud in violation of NMSA 1978, Section 30-16-6 (2006). On July 17, 2012,

6 this Court filed a notice of proposed summary disposition proposing to affirm.

7 Defendant filed a memorandum in opposition, which we have given due

8 consideration. We affirm Defendant’s convictions.

9 In her memorandum in opposition to proposed summary affirmance, Defendant

10 continues to argue that there was insufficient evidence at trial to establish that she was

11 the person who cashed the two stolen checks at the supermarket—the incidents that

12 resulted in the charges against her. [MIO 6-7] She correctly asserts that identity is

13 a fact that must be proven at trial beyond a reasonable doubt. See, e.g., State v.

14 Jimenez, 2003-NMCA-026, ¶ 8, 133 N.M. 349, 62 P.3d 1231 (“[I]dentity is a critical

15 component of criminal proceedings and . . . the [s]tate is required to show that the

16 person sitting in the courtroom is the person who committed a criminal offense outside

17 the courtroom.”), rev’d on other grounds, 2004-NMSC-012, 135 N.M. 442, 90 P.3d

18 461. Defendant’s docketing statement indicates that evidence at her jury trial included

19 surveillance videos and testimony by investigating police officers, the store manager,

2 1 a cashier, and Defendant herself. [DS 3] Defendant does not identify any specific

2 aspects of this evidence that would preclude the jury from concluding that all of the

3 elements of the charged offenses were established beyond a reasonable doubt.

4 Similarly, the jury could have found Defendant’s claim that she did not speak English

5 well enough to write and cash the checks to be incredible, given the jury’s opportunity

6 to observe her in court notwithstanding the fact that she testified through an

7 interpreter. [DS 3; MIO 7] As we stated in our notice of proposed summary

8 disposition, “[t]his Court evaluates the sufficiency of the evidence in a criminal case

9 by viewing the evidence in the light most favorable to the verdict, resolving all

10 conflicts and indulging all permissible inferences to uphold the conviction, and

11 disregarding all evidence and inferences to the contrary.” State v. Treadway,

12 2006-NMSC-008, ¶ 7, 139 N.M. 167, 130 P.3d 746. “We will not substitute our

13 judgment for that of the fact finder, nor will we re-weigh the evidence.” Id.

14 Accordingly, for the reasons stated above and in our notice of proposed

15 summary disposition, we affirm Defendant’s convictions.

16 IT IS SO ORDERED.

17 __________________________________ 18 CELIA FOY CASTILLO, Chief Judge

3 1 WE CONCUR:

2 __________________________________ 3 JAMES J. WECHSLER, Judge

4 __________________________________ 5 CYNTHIA A. FRY, Judge