State v. Flores-Soto ( 2014 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,542
5 JAVIER FLORES-SOTO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Ross C. Sanchez, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 FRY, Judge.
18 {1} Defendant appeals from two convictions for criminal sexual contact with a
19 minor (CSCM). We previously issued a notice of proposed summary disposition in
1 which we proposed to uphold the convictions. Defendant has filed a memorandum in
2 opposition, which we have duly considered. Because we remain unpersuaded by
3 Defendant’s assertions of error, we affirm.
4 {2} We previously set forth the pertinent background information, including a
5 description of the evidence presented below and the applicable analytical framework,
6 in the notice of proposed summary disposition. We will avoid unnecessary reiteration
7 here. Instead, we will focus on the substantive material advanced in the memorandum
8 in opposition.
9 {3} First, Defendant renews his challenge to the sufficiency of the evidence. [MIO
10 5-9] Specifically, Defendant contends that the evidence against him should not have
11 been credited on grounds that: (1) the victim had previously made similar allegations
12 against a different individual, and (2) both the victim and her mother may have had
13 personal reasons to testify falsely against him. [MIO 7-9]. However, on appeal we
14 cannot re-weigh the evidence or second-guess the factfinder’s credibility
15 determinations. See State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d
16 789 (“The reviewing court does not weigh the evidence or substitute its judgment for
17 that of the fact finder as long as there is sufficient evidence to support the verdict.”),
18 abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020,
19 ¶ 17, 148 N.M. 381, 237 P.3d 683; State v. Armijo, 2005-NMCA-010, ¶ 4, 136 N.M.
20 723, 104 P.3d 1114 (“[I]t is for the fact-finder to evaluate the weight of the evidence,
2
1 to assess the credibility of the various witnesses, and to resolve any conflicts in the
2 evidence; we will not substitute our judgment as to such matters.”). We therefore
3 reject Defendant’s first assertion of error.
4 {4} Second, Defendant continues to argue that there were problems with the quality
5 of the interpretation provided at trial such that he was denied due process. [MIO 9-10]
6 However, Defendant acknowledges that the necessary facts were not developed on the
7 record below. [MIO 9] As a consequence, we conclude that this issue is not properly
8 before us on the merits. See, e.g., In re Ernesto M., Jr., 1996-NMCA-039, ¶ 19, 121
9 N.M. 562, 915 P.2d 318 (declining to address a due process argument on appeal where
10 the defendant failed to preserve the issue by bringing it to the attention of the court,
11 and where there was nothing in the record to substantiate the claim); and see generally
12 State v. Jim, 1988-NMCA-092, ¶ 3, 107 N.M. 779, 765 P.2d 195 (“It is defendant’s
13 burden to bring up a record sufficient for review of the issues he raises on appeal.”).
14 {5} Accordingly, for the reasons stated above and in the notice of proposed
15 summary disposition, we affirm.
16 {6} IT IS SO ORDERED.
17 __________________________________
18 CYNTHIA A. FRY, Judge
19 WE CONCUR:
3
1 _________________________________
2 JAMES J. WECHSLER, Judge
3 _________________________________
4 J. MILES HANISEE, Judge
4