State v. Lauynh ( 2019 )

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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. A-1-CA-37489
5 DUC LAUYNH,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Christina P. Argyres, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
18 {1} Defendant appeals from the district court’s order revoking his probation. This
19 Court issued a notice of proposed disposition in which we proposed to affirm.
1 Defendant has filed a memorandum in opposition. After due consideration, we remain
2 unpersuaded. We therefore affirm.
3 {2} We previously set forth the relevant background information and principles of
4 law in the notice of proposed summary disposition. We will not reiterate at length
5 here. Instead, we will focus on the content of the memorandum in opposition.
6 {3} In his memorandum in opposition to our notice of proposed disposition,
7 Defendant does not point out specific errors in fact or law. See Hennessy v. Duryea,
8 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly
9 held that, in summary calendar cases, the burden is on the party opposing the proposed
10 disposition to clearly point out errors in fact or law.”). Nevertheless, Defendant
11 maintains that there was insufficient evidence to establish that he willfully violated his
12 probation. [MIO 1, 4-6] Defendant claims that the only evidence in support of the
13 allegations that he committed the crimes of aggravated assault and being a felon in
14 possession of a firearm was the testimony of Michael Vargas. [MIO 5-6] Defendant
15 acknowledges that Vargas testified that Defendant pulled a gun on him after a verbal
16 dispute over a parking space and there was video evidence that may have corroborated
17 Vargas’s testimony. [MIO 6; see also CN 3] Additionally, Defendant recognizes that
18 officers found him and a firearm in an apartment. [MIO 6; see also CN 3] However,
19 he asserts that there was no evidence that the firearm recovered was the firearm at
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1 issue, and he asserts he did not live at the apartment where he and the firearm were
2 found. [MIO 6; see also DS 4] He further maintains that he told the officer that he had
3 a cell phone in his hand while he was arguing with Vargas, and a cell phone—not a
4 firearm—was found on his person. [MIO 6; see also CN 3]
5 {4} As discussed in our notice of proposed disposition, we will not reweigh the
6 evidence. [CN 4] See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d
7 482 (recognizing that it is for the fact-finder to resolve any conflict in the testimony
8 of the witnesses and to determine where the weight and credibility lie). Therefore, for
9 the reasons discussed above and in this Court’s notice of proposed disposition, we
10 conclude that the district court did not abuse its discretion in finding that Defendant
11 willfully violated his probation.
12 {5} Accordingly, we affirm the revocation of Defendant’s probation.
13 {6} IT IS SO ORDERED.
14 __________________________________
15 LINDA M. VANZI, Judge
16 WE CONCUR:
17 _________________________________
18 JENNIFER L. ATTREP, Judge
19 _________________________________
20 KRISTINA BOGARDUS, Judge
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