State v. Gallagher ( 2017 )

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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. A-1-CA-36286
5 ROBERT J. GALLAGHER,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 Fred T. Van Soelen, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Santa Fe, NM
14 Josephine H. Ford, Assistant Appellate Defender
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 GARCIA, Judge.
19 {1} Defendant-Appellant Robert J. Gallagher (Defendant) appeals from his
1 convictions of trafficking methamphetamine and conspiracy to traffic
2 methamphetamine. We previously issued a notice of proposed summary disposition
3 in which we proposed to affirm. Defendant has filed a memorandum in opposition.
4 After due consideration, we remain unpersuaded. We therefore affirm.
5 {2} The pertinent background information was set forth in our notice of proposed
6 summary disposition. We will avoid undue repetition here, and focus instead on the
7 content of the memorandum in opposition.
8 {3} As an initial matter, we note that the memorandum in opposition does not
9 challenge our proposed disposition of Defendant’s ineffective assistance of counsel
10 claim. As such, we do not address that issue any further. See Taylor v. Van Winkle’s
11 IGA Farmer’s Mkt., 1996-NMCA-111, ¶ 5, 122 N.M. 486, 927 P.2d 41 (recognizing
12 that issues raised in a docketing statement, but not contested in a memorandum in
13 opposition are abandoned).
14 {4} With respect to Defendant’s evidentiary challenge, the memorandum in
15 opposition disagrees with our proposed holding that the statement at issue was not
16 offered for the truth of the matter asserted. [MIO 2] According to the memorandum,
17 an informant testified that he met Defendant while staying in a hotel on May 27, 2014.
18 [MIO 3] Defendant rented the room next door to the informant and offered to sell him
19 some drugs. [Id.] The next day, the informant went next door to complete the
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1 purchase, but a woman opened the door and told him that Defendant was not there.
2 [Id.] The informant told the woman that he wanted to buy drugs from Defendant, and
3 she told him that she knew someone else who could sell him drugs. [MIO 4] The
4 woman later asked the informant to meet her at a store, where she arrived with a
5 different male companion. [Id.] At this meeting, the woman told the informant to give
6 her money, and that she would then go get drugs for him. [Id.] The memorandum
7 asserts that the State intended to use the latter statement “as substantive evidence of
8 the crimes charged against [Defendant.]” [MIO 2] Specifically, Defendant asserts that
9 the statement was “introduced . . . with the intent to prove [Defendant’s] involvement
10 in a conspiracy with [the woman] to sell methamphetamine[].” [MIO 5] However, we
11 fail to perceive how the statement, taken for its truth, had any relevance with respect
12 to proving Defendant’s guilt under that charge. As Defendant admits, the informant
13 testified that the woman told him that she knew someone other than Defendant who
14 could sell him drugs. [MIO 4] “[The informant] told her . . . he was looking for
15 [Defendant] because he was going to sell [the informant] some drugs. [The women]
16 told [the informant], ‘Oh I know somebody, I have a friend.’ She said she would call
17 him on the phone.” [Id.] Also, Defendant does not assert that the State did in fact use
18 the statement for its truth at any point in the litigation. Therefore, we hold that the
19 statement at issue was not hearsay and was, therefore, properly admitted. See State v.
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1 Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828 (holding that the
2 appellate court will affirm the district court’s decision if it is right for any reason, so
3 long as doing so is not unfair to the appellant).
4 {5} To the extent the statement was inappropriately used for its truth, in our notice
5 we proposed to hold that the error was harmless. The memorandum in opposition
6 disagrees with our proposition. [MIO 6] Defendant admits that the State presented
7 evidence that Defendant eventually met with the informant and “handed over” the
8 methamphetamine, stating that he had “the best product. ”[Id.] However, Defendant
9 argues that the fact that he was convicted despite his own testimony at trial—that his
10 involvement was in exchange for drugs for personal use and not as part of a
11 conspiracy—proves that the jury relied on the woman’s statement in reaching its
12 verdict. [Id.] We disagree. The jury, of course, was free to disregard Defendant’s
13 version of the facts. See State v. Foxen, 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29
14 P.3d 1071 (stating that the fact-finder is free to reject the defendant’s version of
15 events). In any event, the memorandum acknowledges that Defendant ultimately
16 admitted that “he was there to transfer methamphetamine.” [MIO 8] In addition,
17 Defendant does not dispute that, after the woman offered to go get drugs for the
18 informant, she arranged for the informant to meet yet another male who also asked for
19 the money first. The informant refused again, and this male testified that he then
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1 “facilitat[ed] the sale” by going to Defendant’s house. [MIO 7] The informant testified
2 that the male came back to the location where the informant was waiting in the same
3 vehicle as Defendant, and that Defendant either handed or attempted to hand
4 methamphetamine to the informant. [MIO 6] In light of this evidence, we hold that
5 there is no reasonable probability that the woman’s statement that she would go get
6 drugs for the informant from someone other than Defendant affected his verdict. See
7 State v. Tollardo, 2012-NMSC-008, ¶ 36, 275 P.3d 110 (“[N]on-constitutional error
8 is harmless when there is no reasonable probability the error affected the verdict.”
9 (internal quotation marks and citation omitted)). Therefore, we affirm.
10 {6} Accordingly, for the reasons stated above and in our notice of proposed
11 summary disposition, we affirm.
12 {7} IT IS SO ORDERED.
13 ________________________________
14 TIMOTHY L. GARCIA, Judge
15 WE CONCUR:
16 _______________________________
17 J. MILES HANISEE, Judge
18 _______________________________
19 HENRY M. BOHNHOFF, Judge
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