State v. Wolf

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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,144 10 ROBERT RAY WOLF, 11 Defendant-Appellant,

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Mike Murphy, District Judge

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

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Will O’Connell, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant 21 MEMORANDUM OPINION 22 FRY, Chief Judge. 23 Defendant appeals his convictions for six counts of criminal sexual penetration 24 (CSP) of a child under thirteen. [RP Vol.II/473] The notice proposed to affirm, and 25 Defendant filed a memorandum in opposition. We remain unpersuaded by

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1 Defendant’s arguments and therefore affirm. See State v. Franklin, 78 N.M. 127, 129, 2 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 3 (Ct. App. 1985). [MIO 1] 4 Issue (1). Defendant continues to argue that his speedy trial rights were 5 violated. [MIO 3] In support of his argument, Defendant notes that he was indicted 6 on these charges on March 22, 2002 [MIO 3]; convicted in 2004 [MIO 1]; that this 7 Court reversed his convictions in 2007 and remanded for a new trial [MIO 1]; and that 8 his new trial did not take place until March 2009. [MIO 3] Defendant argues that 9 “the extraordinary delay in this case violated his constitutional right to a speedy trial.” 10 [MIO 3] 11 An issue concerning a possible violation of the right to a speedy trial must be 12 raised in the trial court and a ruling invoked on the issue or it will not be considered 13 on appeal. See State v. Rojo, 1999-NMSC-001, ¶¶ 49-53, 126 N.M. 438, 971 P.2d 14 829. As acknowledged in the memorandum in opposition, defense counsel never filed 15 a motion to dismiss based on speedy trial grounds. [MIO 4] Although Defendant 16 filed some pro se motions demanding a speedy trial [RP Vol.II/311-12, 316-17], 17 defense counsel subsequently requested continuances in order to prepare for trial and 18 Defendant agreed that the continuances were in his best interests. [RP Vol.II/328-29, 19 338-39] Moreover, the district court did not rule on any speedy trial issue. Because

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1 Defendant failed to invoke a ruling below, we are not in a position to evaluate the four 2 factors from Barker v. Wingo, 407 U.S. 514, 530 (1972). “Where there is a doubtful 3 or deficient record, every presumption must be indulged by the reviewing court in 4 favor of the correctness and regularity of the [trial] court’s judgment.” In re Ernesto 5 M., Jr., 1996-NMCA-039, ¶ 19, 121 N.M. 562, 915 P.2d 318. Moreover, because 6 defense counsel requested continuances in order to prepare for trial, we are not 7 persuaded that anything “in the record suggests such a striking violation of the 8 constitutional right to a speedy trial that it would be appropriate to consider that issue 9 for the first time on appeal” as fundamental error. See State v. Rojo, 1999-NMSC- 10 001, ¶ 53 (internal quotation marks and citation omitted). 11 Recognizing that the speedy trial issue was not adequately argued and preserved 12 below [MIO 4], Defendant argues that he was denied effective assistance of counsel 13 based on counsel’s failure to raise the speedy trial claim. [MIO 4-5] We treat this 14 argument as a motion to amend the docketing statement to add a claim of ineffective 15 assistance of counsel. To prove ineffective assistance of counsel, the defendant must 16 show (1) that counsel’s performance fell below that of a reasonably competent 17 attorney, and (2) that the defendant was prejudiced by the deficient performance. 18 State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. In the present 19 case, we recognize that twenty-one months elapsed between the mandate and second

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1 trial. [MIO 8] However, as noted the record indicates that part of the delay was to 2 allow defense counsel additional time to prepare for trial. [RP Vol.II/328-29, 338-39] 3 Given this, trial counsel may have concluded that the record does not support a speedy 4 trial claim, and instead made the strategic decision to utilize the continuances for 5 additional time to prepare Defendant’s case on the merits. See Lytle v. Jordan, 2001- 6 NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (stating that “[o]n appeal, we will not 7 second guess the trial strategy and tactics of the defense counsel.” (internal quotation 8 marks and citation omitted)). Because the record does not support a speedy trial 9 claim, we can not conclude that counsel’s representation fell below the standard of a 10 reasonably competent defense attorney. See State v. Stenz, 109 N.M. 536, 538, 787 11 P.2d 455, 457 (Ct. App. 1990) (counsel is not ineffective for failing to make a motion 12 that is not supported by the record); see also State v. Martinez, 1996-NMCA-109, ¶ 13 25, 122 N.M. 476, 927 P.2d 31 (expressing a preference for habeas corpus 14 proceedings over remand when the record on appeal does not establish a prima facie 15 case). We accordingly deny Defendant’s request to amend his docketing statement 16 to add this issue. See State v. Ibarra, 116 N.M. 486, 490, 864 P.2d 302, 306 (Ct. App. 17 1993) (denying the motion to amend the docketing statement on the basis that the 18 issue sought to be added is not viable).

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1 Issue (2). Defendant continues to argue that there was insufficient evidence to 2 show that he committed CSP on a child under thirteen. [MIO 10] We review the 3 evidence to determine “whether substantial evidence of either a direct or 4 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt 5 with respect to every element essential to a conviction.” State v. Sutphin, 107 N.M. 6 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, “[w]e view the evidence 7 in the light most favorable to supporting the verdict and resolve all conflicts and 8 indulge all inferences in favor of upholding the verdict.” State v. Hernandez, 115 9 N.M. 6, 26, 846 P.2d 312, 332 (1993). We do not re-weigh the evidence, nor 10 substitute our judgment for that of the fact finder, so long as there is sufficient 11 evidence to support the verdict. Sutphin, 107 N.M. at 131, 753 P.2d at 1319. 12 The facts provide that Victim’s testimony [MIO 2] supports the jury’s findings 13 that Defendant on two occasions caused Victim to engage in anal intercourse [RP 14 Vol.II/414-15], on two occasions caused Victim to engage in cunnilingus [RP 15 Vol.II/416-17], and on two occasions caused Victim to engage in fellatio. [RP 16 Vol.II/418-19] We hold that Victim’s testimony is sufficient to support Defendant’s 17 convictions. See State v. Sparks, 102 N.M. 317, 320, 694 P.2d 1382, 1385 (Ct. App. 18 1985) (defining substantial evidence as that evidence which a reasonable person 19 would consider adequate to support a defendant’s conviction). Although Defendant’s

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1 convictions were based solely on Victim’s uncorroborated testimony [MIO 11], it was 2 within the jury’s prerogative as fact finder to rely on Victim’s testimony. See State 3 v. Nichols, 2006-NMCA-017, ¶ 10, 139 N.M. 72, 128 P.3d 500 (holding that a 4 victim’s uncorroborated testimony is sufficient to support convictions for sexual 5 offenses); see also Sutphin, 107 N.M. at 131, 753 P.2d at 1319 (holding that the fact 6 finder may reject defendant’s version of events); State v. Salas, 1999-NMCA-099, 7 ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact finder to resolve 8 any conflict in the testimony of the witnesses and to determine where the weight and 9 credibility lay). 10 CONCLUSION 11 Based on the foregoing discussion, we affirm Defendant’s convictions. 12 IT IS SO ORDERED.

13 14 CYNTHIA A. FRY, Chief Judge

15 WE CONCUR:

16 17 RODERICK T. KENNEDY, Judge

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2 TIMOTHY L. GARCIA, Judge