State v. Devine ( 2022 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39439
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JAMARIOUS DEVINE,
Defendant-Appellant.
APPEAL FROM THE METROPOLITAN COURT OF BERNALILLO COUNTY
Vidalia Chavez, Metropolitan Court Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
BOGARDUS, Judge.
{1} Defendant appeals from his harassment conviction. This Court issued a calendar
notice proposing to affirm. Defendant has filed a memorandum in opposition with this
Court, which we have duly considered. Unpersuaded, we affirm.
{2} Defendant continues to argue that the trial court abused its discretion by
admitting the “phone dump” containing text messages between Defendant and the
victim into evidence. [MIO 1] Defendant specifies in his memorandum in opposition that
it was error for the trial court to admit “the entirety of the phone dump,” even though the
victim only testified about her knowledge of some specific messages contained within
the “phone dump” and she “had not looked through the entire document.” [MIO 2]
Overall, Defendant argues that it was error to allow the jury access to the entirety of the
“phone dump” when the victim had only authenticated some of the messages. [MIO 2]
{3} “A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion.” State v. Jackson, 2018-NMCA-066, ¶ 13, 429 P.3d 674. It is not an abuse of
discretion to admit evidence that is shown by a preponderance of the evidence to be
what it purports to be. State v. Jimenez, 2017-NMCA-039, ¶ 18, 392 P.3d 668. “The
authentication requirement may be satisfied by evidence of appearance, contents,
substance, internal patterns, or other distinctive characteristics of the item, taken
together with all the circumstances.” Jackson, 2018-NMCA-066, ¶ 13 (internal quotation
marks and citation omitted).
{4} Even if the victim did not authenticate every text message that was admitted into
evidence, the trial court determined that the “phone dump” was a copy of the text
messages [DS 4; CN 3], and therefore, the victim satisfied the authentication
requirement by testifying that the “phone dump” contained copies of text messages sent
between her and Defendant. See id. Defendant has cited no authority requiring that a
witness authenticate every text message contained in a “phone dump” exhibit. See
State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts will not
consider an issue if no authority is cited in support of the issue and that, given no cited
authority, we assume no such authority exists[.]”).
{5} Given that Defendant has not responded to this Court’s proposed disposition of
his chain of custody issue, we deem the issue abandoned. See State v. Salenas, 1991-
NMCA-056, ¶ 2, 112 N.M. 268, 814 P.2d 136. We therefore conclude that the trial court
did not abuse its discretion by admitting the “phone dump,” which contained a copy of
text messages between the victim and Defendant. See Jimenez, 2017-NMCA-039,
¶ 18.
{6} Defendant also continues to assert that there was insufficient evidence presented
at trial to support his conviction. [MIO 2-3] Defendant specifically contends that the sole
eyewitness who testified at trial was not credible. [MIO 3] However, it is for the fact-
finder to resolve any conflict in the testimony of the witnesses and to determine where
the weight and credibility lie. State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986
P.2d 482. Defendant has not presented any additional facts, authority, or argument in
his memorandum in opposition that persuade this Court that our proposed summary
disposition was incorrect. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M.
754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases,
the burden is on the party opposing the proposed disposition to clearly point out errors
in fact or law.”).
{7} For the reasons stated above and in our notice of proposed summary disposition,
we affirm Defendant’s conviction.
{8} IT IS SO ORDERED.
KRISTINA BOGARDUS, Judge
WE CONCUR:
JENNIFER L. ATTREP, Judge
SHAMMARA H. HENDERSON, Judge