State v. R Begay ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 28,855
5 REUBEN BEGAY,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Thomas J. Hynes, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Hugh W. Dangler, Chief Public Defender
13 Allison H. Jaramillo, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 SUTIN, Chief Judge.
18 Defendant appeals his conviction for driving while intoxicated (DWI). We
19 issued a notice of proposed summary disposition, proposing to affirm. Defendant
20 filed a memorandum in opposition, which we have duly considered. Because we
21 remain unpersuaded, we uphold Defendant’s conviction and sentence.
1 On appeal, Defendant challenges the sufficiency of the State’s showing that he
2 had three prior convictions for DWI. [DS 3] We understand Defendant to contend
3 that the State failed to make a prima facie showing that he is the same individual
4 associated with one of the three prior convictions. See generally State v. Sedillo,
5 2001-NMCA-001, ¶ 5, 130 N.M. 98, 18 P.3d 1051 (“The State bears the initial burden
6 of establishing a prima facie case of a defendant’s previous convictions.”).
7 As we observed in the notice of proposed summary disposition, the State
8 satisfied its burden by presenting documents indicating that an individual named
9 Reuben Begay was convicted of DWI in Gallup Magistrate Court in 1988. [DS 2; RP
10 27-28] Although Defendant has challenged the probative value of these documents
11 on grounds that they do not reflect the subject’s date of birth or social security number
12 [DS 2-3; RP 27], Defendant has cited no authority which could be said to require such
13 supplemental information. See generally In re Adoption of Doe, 100 N.M. 764, 765,
14 676 P.2d 1329, 1330 (1984) (observing that if an appellant fails to cite supporting
15 authority, the appellate courts will assume there is none). Below, the district court
16 observed that the individual named in the documents bears the same first and last
17 names as Defendant and that the documents contain a signature which is “obviously
18 the same” as Defendant’s signature. [RP 28] We conclude that this was sufficient to
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1 establish identity. See, e.g., Sedillo, 2001-NMCA-001, ¶¶ 2, 4, 10 (holding that the
2 prosecution made a prima facie case and ultimately bore its burden of persuasion by
3 presenting certified documents including signatures of both the judge and the
4 defendant, as well as a computer printout from the metropolitan court indicating a plea
5 of guilty to DWI). In light of the State’s prima facie showing, as well as Defendant’s
6 failure to present any conflicting evidence, we conclude that the State satisfied its
7 ultimate burden of proof by a preponderance of the evidence. See id. ¶¶ 5, 10
8 (observing that the prosecution must prove prior DWI convictions by a preponderance
9 of evidence).
10 In his memorandum in opposition, Defendant argues that State should have
11 been required to prove the prior conviction beyond a reasonable doubt, rather than by
12 a preponderance of the evidence. [MIO 3-12] However, as Defendant acknowledges,
13 our Supreme Court has held that prior convictions need only be proven by a
14 preponderance of the evidence. See State v. Smith, 2000-NMSC-005, ¶ 9, 128 N.M.
15 588, 995 P.2d 1030. Additionally, this Court has rejected the very argument that
16 Defendant advances in his memorandum in opposition. See State v. Bullcoming,
17 2008-NMCA-097, ¶¶ 25-27, 144 N.M. 546, 189 P.3d 679 (holding that neither
18 Apprendi v. New Jersey, 530 U.S. 466 (2000), nor its progeny require prior
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1 convictions to be proved beyond a reasonable doubt and concluding that the “beyond
2 a reasonable doubt standard does not apply to a finding of a prior DWI conviction for
3 purposes of DWI sentencing”), cert. granted, 2008-NMCERT-007, 144 N.M. 594,
4 189 P.3d 1216.
5 For the reasons stated in this opinion and in the notice of proposed summary
6 disposition, we affirm.
7 IT IS SO ORDERED.
8 __________________________________
9 JONATHAN B. SUTIN, Chief Judge
10 WE CONCUR:
11 _______________________________
12 JAMES J. WECHSLER, Judge
13 _______________________________
14 LINDA M. VANZI, Judge
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