State v. Rascon ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the 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. 30,561
10 BRANDON RASCON,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 John A. Dean, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Carlos Ruiz de la Torre, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 CASTILLO, Judge.
1 Defendant Brandon Rascon appeals his convictions for driving while under the
2 influence of intoxicating liquor (first offense) and failure to obey a stop sign. On
3 August 19, 2010, this Court filed a notice of proposed summary disposition proposing
4 to affirm. On November 30, 2010, Defendant filed a memorandum in opposition to
5 proposed summary affirmance and motion to amend the docketing statement, which
6 we have given due consideration. We deny Defendant’s motion to amend the
7 docketing statement and affirm his convictions.
8 MOTION TO AMEND THE DOCKETING STATEMENT
9 Defendant moves to amend the docketing statement to add a new issue asserting
10 that the district court erred when it failed to suppress evidence obtained as a result of
11 the pretextual stop of Defendant’s vehicle. [MIO 2]
12 “The Court of Appeals may, upon good cause shown, allow the amendment of
13 the docketing statement.” Rule 12-208(F) NMRA.
14 [A] motion to amend the docketing statement (when asserting other than
15 fundamental error or jurisdictional issues) will be granted only if:
16 1. It is timely;
17 2. It states all facts material to a consideration of the new issues
18 attempted to be raised;
19 3. It states those issues and how they were preserved or shows why
20 they did not have to be preserved;
21 4. It states the reason why the issues were not originally raised and
22 shows just cause or excuse for not originally raising them; and
23 5. It complies in other respects with the appellate rules insofar as
24 necessary under the circumstances of the case.
2
1 State v. Rael, 100 N.M. 193, 197, 668 P.2d 309, 312 (Ct. App. 1983). A motion to
2 amend is timely if filed with a defendant’s first memorandum in opposition to this
3 Court’s notice of proposed summary disposition. State v. Moore, 109 N.M. 119, 129,
4 782 P.2d 91, 101 (Ct. App. 1989), superceded by rule on other grounds as recognized
5 in State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).
6 Although Defendant’s motion is timely, it states neither how the issue was
7 preserved in district court nor the reason it was not raised in the original docketing
8 statement. We further observe that much of the analysis applicable to Defendant’s
9 original issue—whether the officer had reasonable suspicion to stop
10 Defendant—would also apply to a pretextual stop analysis.
11 The motion to amend the docketing statement is denied.
12 DENIAL OF MOTION TO SUPPRESS EVIDENCE
13 Defendant asserts that the district court erred in denying his motion to suppress
14 evidence obtained in the course of a traffic stop, because the officer who arrested him
15 did not have reasonable suspicion that he had failed to obey a stop sign.
16 Defendant’s memorandum in opposition continues to argue that the judge had
17 evidence before him, in the form of a video recording of the traffic stop and the
18 testimony of two passengers in Defendant’s car, that supported a conclusion that he
19 had come to a complete stop at the stop sign. [MIO 6-7] Defendant also argues that
3
1 the officer’s testimony was self-contradictory as to where the officer had first seen
2 Defendant. [MIO 7]
3 “As a reviewing court we do not sit as a trier of fact; the district court is in the
4 best position to resolve questions of fact and to evaluate the credibility of witnesses.”
5 State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. “We view the
6 facts in the manner most favorable to the prevailing party and defer to the district
7 court’s findings of fact if substantial evidence exists to support those findings.” Id.8 As we noted in our notice of proposed summary disposition, the video’s depiction of
9 Defendant’s brake lights coming on is not conclusive evidence that he came to a
10 complete stop. [CN 4] Defendant’s suggestion that we assign this case to the general
11 calendar in order to review the video for ourselves in effect asks us to reweigh the
12 evidence. [MIO 11] “[W]e do not reweigh the evidence or substitute our judgment
13 for that of the fact finder.” State v. Davis, 2009-NMCA-067, ¶ 21, 146 N.M. 550, 212
14 P.3d 438. Accordingly, we conclude that the officer had reasonable suspicion that
15 Defendant had broken the law, and the district court did not err in denying
16 Defendant’s motion to suppress evidence obtained as a result of the stop.
17 CONCLUSION
18 For the reasons stated above and in this Court’s notice of proposed summary
19 disposition, we affirm the district court.
4
1 IT IS SO ORDERED.
2 ________________________________
3 CELIA FOY CASTILLO, Judge
4 WE CONCUR:
5 __________________________________
6 JAMES J. WECHSLER, Judge
7 __________________________________
8 ROBERT E. ROBLES, Judge
5