State v. K Bennett ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 29,183
5 KERRY BENNETT,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Stan Whitaker, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Frechette & Associates, P.C.
13 Todd Hotchkiss
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VIGIL, Judge.
18 Defendant appeals his convictions for criminal damage to property (over
19 $1000), conspiracy to commit criminal damage to property (over $1000), and
20 contributing to the delinquency of a minor. We issued a calendar notice proposing to
1 affirm. Defendant has responded with a memorandum in opposition. We affirm.
2 Defendant’s memorandum in opposition continues to challenge the sufficiency
3 of the evidence to support each of his convictions. A sufficiency of the evidence
4 review involves a two-step process. Initially, the evidence is viewed in the light most
5 favorable to the verdict. Then the appellate court must make a legal determination of
6 “whether the evidence viewed in this manner could justify a finding by any rational
7 trier of fact that each element of the crime charged has been established beyond a
8 reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994)
9 (internal quotation marks and citation omitted).
10 To support his conviction for criminal damage to property (over $1000), the
11 evidence had to show that Defendant intentionally damaged the property of another,
12 and the amount of damage was over $1000. [RP 67] To support the conviction for
13 conspiracy to commit criminal damage to property (over $1000), the evidence had to
14 show that Defendant and another person through words or acts agreed together to
15 commit that crime. [RP 69] The contributing to the delinquency of a minor (CDM)
16 charge required evidence that Defendant transported Christine Bennett (Christine),
17 assisted her in damaging property and/or provided for her a means of escape, and that
18 this caused or encouraged Christine to conduct herself in a manner injurious to her
19 morals, health, or welfare. [RP 70]
2
1 Our calendar notice proposed to hold that the facts in the docketing statement
2 demonstrated that there was sufficient evidence to support these three convictions.
3 Defendant’s memorandum primarily argues that the evidence was insufficient in two
4 respects: Defendant’s daughter/co-conspirator (Christine) did not testify, and there
5 was insufficient evidence of intent. We disagree, and conclude that the facts as set
6 forth in the docketing statement are sufficient to support the convictions. Specifically,
7 there was no need for Christine to testify in this case, because other evidence satisfied
8 the State’s burden of proof. We also disagree with Defendant’s assertion that his mere
9 presence did not establish intent to commit the crimes or participation in the
10 conspiracy. As discussed below, there was additional circumstantial evidence beyond
11 his mere presence.
12 The victims in this case were Alan and Diana White, the latter being
13 Defendant’s ex-wife and the mother of Christine. [DS 3-6] Alan testified that he and
14 his wife were awakened by the sound of a large truck, which he believed belonged to
15 Defendant. [DS 3] Alan went outside and saw paint damage to two of his vehicles.
16 [DS 3] He photographed the damage, and looked at the video from a security
17 surveillance system he had installed, which showed Defendant’s vehicle dropping off
18 and then picking up the individual who spray painted the vehicles. [DS 3, 5] The tape
19 also showed a neighbor’s vehicle driving, shining its headlights onto the vehicle that
3
1 Alan believed to belong to Defendant. [DS 3-4] That neighbor identified Defendant
2 as the person who was driving the vehicle that picked up the person during the
3 incident. [DS 6] Both Alan and Diana White identified Christine as the individual who
4 spray painted the vehicles. [DS 5, 6] Diana also corroborated Alan’s identification of
5 Defendant’s vehicle. [DS 6] At trial, a police officer testified that he was dispatched
6 to the scene, observed the damage, and reviewed the videotape of the incident. [DS
7 7] There was also testimony from an employee of an auto repair business who had
8 inspected one of the vehicles and estimated $2,223.23 in damages. [DS 7]
9 To the extent that some of victims’ testimony was inconsistent with respect to
10 the acts in question, this was a matter to be resolved by the factfinder, which in this
11 case was the jury. See State v. Roybal, 115 N.M. 27, 30, 846 P.2d 333, 336 (Ct. App.
12 1992). We also believe that Defendant’s conduct as observed by the witnesses was
13 sufficient to support both his intent to commit the acts and his agreement with
14 Christine. See State v. Hoeffel, 112 N.M. 358, 361, 815 P.2d 654, 657 (Ct. App. 1991)
15 (“Intent can be proved by circumstantial evidence.”); State v. Johnson,
16 2004-NMSC-029, ¶ 49, 136 N.M. 348, 98 P.3d 998 (noting that an agreement may be
17 in the form of a mutually implied understanding and may be inferred from
18 circumstantial evidence). Intent and the agreement were also supported by the
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1 conduct of Defendant and Christine on the following day, where they taunted the
2 Whites. [DS 4]
3 Finally, Defendant also continues to challenge the damage estimate, asserting
4 that there was prior damage to the vehicle and that only photos of the damage had
5 been used. [DS 4, 15] We believe that any inconsistency in the testimony of the
6 Whites, as well as any claim that there was prior damage to the vehicle, was a matter
7 to be resolved by the factfinder. See State v. Haar, 110 N.M. 517, 521, 797 P.2d 306,
8 310 (Ct. App. 1990) (holding that a jury can draw inferences from all of the evidence
9 in determining the amount of damage).
10 For the reasons set forth above, we affirm.
11 IT IS SO ORDERED.
12
13 MICHAEL E. VIGIL, Judge
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1 WE CONCUR:
2
3 JAMES J. WECHSLER, Judge
4
5 JONATHAN B. SUTIN, Judge
6