City of Artesia v. Billips ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 CITY OF ARTESIA,
3 Plaintiff-Appellee,
4 v. No. 31,621
5 HONDO BILLIPS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
8 J. Richard Brown, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 BUSTAMANTE, Judge.
1 Hondo Billips (Defendant) appeals from the district court’s order upon
2 Defendant’s appeal from magistrate court, convicting Defendant, after a bench trial,
3 of being a minor in possession of alcohol. [RP 73] Defendant raises one issue on
4 appeal: whether it is illegal for a minor to possess alcohol in order to dispose of it.
5 [DS 2] The calendar notice proposed summary affirmance. [Ct. App. File, CN1]
6 Defendant has filed a memorandum in opposition that we have duly considered. [Ct.
7 App. File, MIO] Unpersuaded, however, we affirm.
8 DISCUSSION
9 In the memorandum, Defendant agrees that the issue is a question of whether
10 sufficient evidence existed to convict Defendant of being a minor in possession of
11 alcohol. [MIO 1] Defendant actually argues, however, that the facts do not support
12 his conviction, relying on State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984
13 (1967) and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985).
14 [MIO 1-2] We are not persuaded.
15 “We review sufficiency of the evidence on appeal from a highly deferential
16 standpoint.” State v. Dowling, 2011-NMSC-016, ¶ 20, 150 N.M. 110, 257 P.3d 930.
17 “The Court must determine ‘whether substantial evidence of either a direct or
18 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt
2
1 with respect to every element essential to a conviction.’” Id. (quoting State v. Sutphin,
2 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988)); see also State v. Orgain, 115 N.M.
3 123, 126, 847 P.2d 1377, 1380 (Ct. App. 1993) (“[O]ur review involves a two-step
4 process: deference to the resolution of factual conflicts and inferences derived
5 therefrom, and a legal determination of whether the evidence viewed in this manner
6 could support the conviction.”).
7 NMSA 1978, Section 60-7B-1(C) (2004) provides that:
8 It is a violation of the Liquor Control Act for a minor to buy, attempt to
9 buy, receive, possess or permit himself to be served with alcoholic
10 beverages.
11 At trial, the City of Artesia (the City) presented evidence that on or about
12 September 17, 2010, in Artesia, New Mexico, Officer Huerta observed Defendant
13 removing a beer from his midsection that was covered by a t-shirt. [RP 49, 56] The
14 officer also testified that when he made contact with Defendant, the officer asked
15 Defendant if he had purchased the 24 ounce can of Budlight beer and the 24 ounce can
16 of Budlight Lime beer. [Id.] The City further presented evidence that Defendant was
17 under 21 years old at the time [RP 48], and that Defendant admitted stealing the beer.
18 [RP 49]
3
1 Defendant contended that he was trying to remove alcohol that he had just
2 discovered in his truck when he stopped for gas. [DS 1] He asserted that he was in
3 the act of removing the alcohol to prevent being found with it when he was caught
4 holding it. [Id.] The memorandum states that Defendant had “something under his
5 shirt which he then placed in the cab of his pickup truck.” [MIO 2] After the bench
6 trial, the district court convicted Defendant of being a minor in possession of alcohol
7 in violation of Section 60-7B-1(C). [RP 73]
8 Defendant argues that the magistrate and district court convicted him of being
9 a minor in possession of alcohol despite his reasonable explanation for his temporary
10 control of the beer. [MIO 2] The City presented substantial evidence to support
11 Defendant’s conviction. The fact that Defendant’s version of events, i.e., that he was
12 exerting only temporary control over beer that was not his, conflicted with the City’s
13 evidence, does not persuade us otherwise. See State v. Salas, 1999-NMCA-099, ¶ 13,
14 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder [in this case, the
15 judge] to resolve any conflict in the testimony of the witnesses and to determine where
16 the weight and credibility lay); see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126
17 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting acquittal does not provide
18 a basis for reversal because the jury is free to reject Defendant’s version of the
4
1 facts.”); and see In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915
2 P.2d 318 (stating that the question is whether the trial court’s “decision is supported
3 by substantial evidence, not whether the trial court could have reached a different
4 conclusion.”).
5 CONCLUSION
6 We affirm Defendant’s conviction of being a minor in possession of alcohol.
7 IT IS SO ORDERED.
8
9 MICHAEL D. BUSTAMANTE, Judge
10 WE CONCUR:
11
12 TIMOTHY L. GARCIA, Judge
13
14 J. MILES HANISEE, Judge
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