City of Bloomfield v. Kurinko ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 CITY OF BLOOMFIELD,
3 Plaintiff-Appellee,
4 v. NO. 32,011
5 DANNY KURINKO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Thomas J. Hynes, District Judge
9 Gerding & O’Loughlin, P.C.
10 T. Ryan Lane
11 Farmington, NM
12 for Appellee
13 Frederick D. Jones, Jr.
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 HANISEE, Judge.
1 {1} Defendant Danny Kurinko appeals his conviction for driving on a suspended
2 or revoked license. He challenges the admission of certain documentary evidence and
3 the sufficiency of the evidence in support of his conviction. As neither of these claims
4 of error have merit, we affirm.
5 Foundation for the Admission of Documentary Evidence
6 {2} Kurinko contends that the district court erred in admitting certain documentary
7 evidence that was provided by the Motor Vehicle Division of the State Department
8 of Taxation and Revenue. We review the admission of evidence for an abuse of
9 discretion. Ruiz v. Vigil-Giron, 2008-NMSC-063, ¶ 7, 145 N.M. 280, 196 P.3d 1286.
10 {3} Kurinko asserts that the documents were inadmissible under Rule 11-803(H)
11 NMRA (2011, amended 2012) because no foundation had been laid for their
12 admission. However, laying a foundation is generally unnecessary when introducing
13 a public record into evidence “because a public official is presumed to properly
14 perform his or her duty and because it is therefore more likely that the public record
15 will be accurate.” Ruiz, 2008-NMSC-063, ¶ 8. Here, the documents were certified
16 by the director of the Motor Vehicle Division, and the certification was stamped with
17 the seal of the State of New Mexico. In State v. Padilla, 1978-NMCA-060, ¶¶ 23-24,
18 92 N.M. 19, 582 P.2d 396, we held that documents that have been authenticated
19 through the certification process necessarily have the proper foundation to establish
2
1 that they are evidence of the activities of the public body under Rule 11-803(H)(1).
2 We therefore hold that the necessary foundation was laid for the admission of the
3 documents.
4 {4} Kurinko states in a single sentence, unsupported by any authority, that if a
5 proper foundation were not laid, then the admission of the evidence would violate the
6 right to confront the witnesses against him. However, we have concluded that a
7 proper foundation was laid. As Kurinko makes no other argument based on the
8 Confrontation Clause and does not explain why this evidence was testimonial so as
9 to come within the clause’s protections, he has failed to demonstrate error on this
10 basis.
11 Sufficiency of the Evidence
12 {5} Kurinko asserts that there was insufficient evidence that he knew or should have
13 known that he was driving on a suspended or revoked license as required by NMSA
14 1978, Section 66-5-39(A) (1993, amended 2013). “In reviewing the sufficiency of
15 evidence used to support a conviction, we resolve all disputed facts in favor of the
16 State, indulge all reasonable inferences in support of the verdict, and disregard all
17 evidence and inferences to the contrary.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126
18 N.M. 438, 971 P.2d 829. Viewing the evidence in this manner, we then “determine
19 whether any rational jury could have found the essential facts to establish each
3
1 element of the crime beyond a reasonable doubt.” State v. Dowling, 2011-NMSC-
2 016, ¶ 20, 150 N.M. 110, 257 P.3d 930.
3 {6} In a case involving driving on a revoked license, the defendant’s knowledge of
4 the revocation is generally proved by circumstantial evidence and reasonable
5 inferences drawn from that evidence. See State v. Herrera, 1991-NMCA-005, ¶¶ 10,
6 20, 111 N.M. 560, 807 P.2d 744. Evidence that a defendant was mailed or otherwise
7 provided with a notice of revocation will support a conviction, as will evidence that
8 he refused to submit to a chemical test, since it is presumed that the arresting officer
9 complied with the statute that requires that the arresting officer advise the defendant
10 that the failure to submit to a chemical test will result in revocation. Id. ¶¶ 21-22.
11 {7} At Kurinko’s trial, the City of Bloomfield (City) presented a variety of evidence
12 that supported a reasonable inference that Kurinko knew or should have known that
13 his license had been revoked. The City introduced a revocation notice issued by the
14 Motor Vehicle Division, which stated that the revocation was based on a “DWI
15 Criminal Conviction.” The notice stated that the revocation of Kurinko’s license
16 would begin on January 29, 2007, and continue for a minimum of a year. It explained
17 that reinstatement of Kurinko’s license would not be automatic and that the revocation
18 would remain effective until all the requirements for reinstatement were met,
19 including payment of a reinstatement fee. The notice stated that it was mailed on
4
1 March 7, 2007. The City also introduced a subsequent notice of revocation that was
2 issued by the officer who arrested Kurinko in another drunk driving incident on April
3 18, 2009. This document stated that Kurinko refused to submit to chemical testing
4 and that the arresting officer “personally served a copy” of the notice on Kurinko on
5 that date. These documents provided circumstantial evidence that on two different
6 occasions, as a consequence of two different drunk driving offenses, Kurinko was
7 given notice that his license would be revoked. In addition, the officer who arrested
8 Kurinko testified that when he informed Kurinko that his license had been revoked,
9 it was the officer’s opinion that Kurinko did not appear to be surprised. The officer
10 also testified that Kurinko was carrying multiple licenses from several states, none of
11 which was valid. The fact that Kurinko felt the need to carry multiple licenses with
12 him provided additional circumstantial evidence that he was aware that he did not
13 have a valid New Mexico license. See NMSA 1978, § 66-5-2(A)(2) (2007, amended
14 2013) (stating that in order to receive a New Mexico license, a person must either
15 surrender all other state driver’s licenses or provide an affidavit stating that he does
16 not have any other license). Taking all of this evidence together and viewing it in the
17 light most favorable to the City, we hold that the evidence was sufficient to support
18 a conclusion that Kurinko actually knew or should have known that his license had
19 been revoked.
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1 {8} Accordingly, we affirm Kurinko’s conviction for driving on a revoked or
2 suspended license.
3 {9} IT IS SO ORDERED.
4 _________________________
5 J. MILES HANISEE, Judge
6 WE CONCUR:
7 _________________________________
8 JONATHAN B. SUTIN, Judge
9 _________________________________
10 LINDA M. VANZI, Judge
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