State v. Akers ( 2017 )

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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. 35,523
5 CHERYL AKERS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
8 Daniel A. Bryant, 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, Chief Judge.
18 {1} Defendant appeals her convictions for aggravated assault upon a peace officer
19 (deadly weapon), tampering with evidence, and resisting, evading, or obstructing an
1 officer. We issued a calendar notice proposing to affirm. Defendant has responded
2 with a motion to amend the docketing statement and a memorandum in opposition.
3 We hereby deny the motion to amend. We affirm.
4 MOTION TO AMEND
5 {2} Defendant has filed a motion to amend the docketing statement to add a new
6 issue. [MIO 2] In cases assigned to the summary calendar, this Court will grant a
7 motion to amend the docketing statement to include additional issues if the motion (1)
8 is timely, (2) states all facts material to a consideration of the new issues sought to be
9 raised, (3) explains how the issues were properly preserved or why they may be raised
10 for the first time on appeal, (4) demonstrates just cause by explaining why the issues
11 were not originally raised in the docketing statement, and (5) complies in other
12 respects with the appellate rules. See State v. Rael, 1983-NMCA-081, ¶ 15, 100 N.M.
13 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that are
14 not viable, even if they allege fundamental or jurisdictional error. See State v. Moore,
15 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, superceded by rule on other
16 grounds as stated in State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d
17 730.
18 {3} Here, Defendant claims that double jeopardy precluded her conviction for
19 tampering with evidence because it was a mere continuation of the conduct that
20 supported her conviction for resisting, evading, or obstructing. [MIO 2] In effect,
2
1 Defendant is arguing that the conduct was unitary. When determining whether [a
2 d]efendant’s conduct was unitary, we consider whether [the d]efendant’s acts are
3 separated by sufficient indicia of distinctness. State v. DeGraff, 2006-NMSC-011,
4 ¶ 27, 139 N.M. 211, 131 P.3d 61 (internal quotation marks and citation omitted).
5 “Conduct is unitary when not sufficiently separated by time or place, and the object
6 and result or quality and nature of the acts cannot be distinguished.” State v. Silvas,
7 2015-NMSC-006, ¶ 10, 343 P.3d 616.
8 {4} The conduct in this case supporting the charges was not unitary. The tampering
9 conviction was based on the abandonment of the motor vehicle that was used in the
10 altercation, which took place in a completely different area. [RP 79; MIO 3-4] The
11 obstruction conviction was based on Defendant’s obstruction of an officer who was
12 attempting to arrest her husband. [RP 80] As such, the conduct was not unitary.
13 JURY INSTRUCTION
14 {5} Defendant has abandoned this issue. [MIO 1, fn. 1]
15 SUFFICIENCY OF THE EVIDENCE
16 {6} Defendant continues to claim that the evidence was insufficient to support her
17 conviction for tampering with evidence. A sufficiency of the evidence review involves
18 a two-step process. Initially, the evidence is viewed in the light most favorable to the
19 verdict. Then the appellate court must make a legal determination of “whether the
20 evidence viewed in this manner could justify a finding by any rational trier of fact that
3
1 each element of the crime charged has been established beyond a reasonable doubt.”
2 State v. Apodaca, 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal
3 quotation marks and citations omitted).
4 {7} In order to convict Defendant, the evidence had to show that Defendant hid or
5 placed a motor vehicle in an effort to avoid apprehension, prosecution, or conviction.
6 [RP 79] Here, the vehicle in question was the instrument that constituted the deadly
7 weapon for the assault charge. [RP 78] The vehicle apparently belonged to someone
8 else, and the evidence indicates that Defendant abandoned the vehicle with the keys
9 inside and that she spent two nights nearby hiding in a ditch. [RP 125, 128; MIO 4]
10 A jury could reasonably conclude that Defendant intentionally disassociated herself
11 from the vehicle by abandoning it and sleeping in the ditch.
12 {8} For the reasons set forth above, affirm.
13 {9} IT IS SO ORDERED.
14 __________________________________
15 LINDA M. VANZI, Chief Judge
16 WE CONCUR:
4
1 _________________________________
2 MICHAEL E. VIGIL, Judge
3 _________________________________
4 STEPHEN G. FRENCH, Judge
5