State v. Schwartz ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 30,238
10 LEO J. SCHWARTZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY
13 Edmund H. Kase, III, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Leo J. Schwartz, III
18 San Antonio, NM
19 Pro Se Appellant
20 MEMORANDUM OPINION
21 FRY, Chief Judge.
22 Defendant appeals, pro se, from the district court’s order in a de novo trial,
23 finding him guilty of failure to obey a traffic control device (failing to stop at a stop
24 sign), and remanding the case back to magistrate court for imposition of the original
1 sentence. We issued a notice of proposed summary disposition, proposing to affirm.
2 Defendant has responded to our notice with a memorandum in opposition. We have
3 considered Defendant’s response and remain unpersuaded that Defendant has
4 demonstrated error. We, therefore, affirm.
5 In his docketing statement, Defendant asked whether the magistrate and district
6 courts erred by failing to apply NMSA 1978, Section 3-49-1(O) (1967), and City of
7 Las Cruces v. Rogers, 2009-NMSC-042, 146 N.M. 790, 215 P.3d 728, which, he
8 contends, would have compelled a dismissal of the alleged traffic violation. [DS 3]
9 Our notice first explained that Defendant did not set forth the factual and legal
10 arguments that he and the State made below or the basis for the district court’s ruling,
11 which are omissions that, alone, may constitute grounds for affirmance. Our notice
12 nevertheless attempted to address Defendant’s issue on the merits based on what we
13 could glean from the tape log.
14 The record revealed the following. Conflicting evidence was presented to the
15 district court about whether the alleged traffic infraction occurred on public or private
16 property. [RP 24-25, 27-29] The district court determined that the case had to be
17 resolved on credibility grounds, and that it believed the officer and the State’s
18 argument that Defendant failed to stop at the stop sign on public, not private, property.
19 [RP 30-32] We explained that “[d]etermining credibility and weighing evidence are
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1 tasks entrusted to the trial court sitting as fact-finder,” and the fact finder is free to
2 reject the defendant’s version of events. State v. Gonzales, 1997-NMSC-050, ¶ 18,
3 124 N.M. 171, 947 P.2d 128.
4 The State argued that the citation was issued to enforce the state traffic code,
5 not a municipal ordinance. [RP 30] The citation, the charging document, and the
6 magistrate court’s judgment on the criminal complaint support the State’s assertion.
7 [RP 4; 19] We accept factual recitations in the docketing statement as true unless the
8 record on appeal shows otherwise. See State v. Calanche, 91 N.M. 390, 392, 574 P.2d
9 1018, 1020 (Ct. App. 1978).
10 Deferring to the fact finder that the traffic offense occurred on public property
11 and because it appears Defendant was charged with a violation of the state traffic
12 code, we stated that the authority upon which Defendant relied is inapplicable. See
13 Rogers, 2009-NMSC-042, ¶ 16 (holding that “[p]ursuant to Section 3-49-1(O), the
14 City lacked the authority to enforce its DWI ordinance on private property without the
15 written consent of the property owner”). On these grounds, we saw no error.
16 In his response to our notice, Defendant does not directly address our proposed
17 analysis and does not argue that the district court made legal error, or that its ruling
18 was based on a non-credibility matter. Instead, Defendant recounts the testimony
19 presented at trial, which is not materially different than our understanding from the
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1 record. [DS 3-7] Also, he discusses his past traffic citations, why he believes he was
2 being targeted by Socorro police, and addresses his federal civil suit against the police.
3 [DS 7-13] Defendant has presented no new factual or legal argument that
4 demonstrates error in this case.
5 For the reasons stated above and in our notice, we affirm.
6 IT IS SO ORDERED.
7
8 CYNTHIA A. FRY, Chief Judge
9 WE CONCUR:
10
11 JAMES J. WECHSLER, Judge
12
13 MICHAEL D. BUSTAMANTE, Judge
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