State v. Sanchez ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40739
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RUBEN SANCHEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Mark Sanchez, District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
for Appellee
Harrison & Hart, LLC
Nicholas T. Hart
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
IVES, Judge.
{1} Defendant appeals his three convictions for criminal sexual contact of a minor.
We issued a calendar notice proposing to affirm. Defendant has responded with a
motion to amend the docketing statement and a memorandum in opposition. We deny
the motion to amend and we affirm Defendant’s convictions.
Motion to Amend
{2} Defendant has filed a motion to amend the docketing statement to add a new
issue. [MIO 10] In cases assigned to the summary calendar, this Court will grant a
motion to amend the docketing statement to include additional issues if the motion (1) it
is timely, (2) states all facts material to a consideration of the new issues sought to be
raised, (3) explains how the issues were properly preserved or why they may be raised
for the first time on appeal, (4) demonstrates just cause by explaining why the issues
were not originally raised in the docketing statement, and (5) complies in other respects
with the appellate rules. See State v. Rael, 1983-NMCA-081, ¶ 15, 100 N.M. 193, 668
P.2d 309. This Court will deny motions to amend that raise issues that are not viable,
even if they allege fundamental or jurisdictional error. See State v. Moore, 1989-NMCA-
073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled on other grounds by State v. Salgado,
1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.
{3} Here, Defendant seeks to add the issue of whether there was a valid waiver of
Defendant’s right to a jury trial. [MIO 10] Specifically, Defendant claims that there
needed to be an on-the-record showing that the waiver was knowingly and voluntarily
made. However, constitutional rights may be waived; the right to a jury trial is not the
sort of constitutional right that may be waived only in writing; and it need not be shown
that Defendant was advised on the record regarding the waiver. See State v. Singleton,
2001-NMCA-054, ¶ 11, 130 N.M. 583, 28 P.3d 1124.
{4} Rule 5-605(A) NMRA states that a case should be tried by jury “unless the
defendant waives a jury trial with the approval of the court and the consent of the state.”
Defendant in this case actually signed a waiver of his right to a jury trial, which included
an approval by the court and consent of the State. [RP 112] As such, we do not deem
Defendant’s issue to be viable.
Ineffective Assistance of Counsel/Harshness of Sentence
{5} Defendant does not include and further argument is support of these issues
(issues 1 and 3 in the docketing statement). Accordingly, we deem these issues to be
abandoned. 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.”); State v. Johnson, 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306 (explaining
that when a case is decided on the summary calendar, an issue is deemed abandoned
when a party fails to respond to the proposed disposition of that issue).
Sufficiency of the Evidence
{6} Defendant continues to challenge the sufficiency of the evidence to support his
convictions for three counts of criminal sexual contact of a minor (CSCM). [MIO 9] “The
test for sufficiency of the evidence is whether substantial evidence of either a direct or
circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Montoya, 2015-NMSC-
010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). The reviewing
court “view[s] the evidence in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.”
State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We
disregard all evidence and inferences that support a different result. See State v. Rojo,
1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Substantial evidence is defined as
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661(internal quotation marks and citation omitted).
{7} Defendant was convicted on one count of CSCM in the second degree, based on
a position of authority theory and the unlawful touching of Victim’s unclothed intimate
parts. See NMSA 1978, § 30-9-13(B)(2)(a) (2003). Defendant was also convicted of two
counts of CSCM in the third degree, based on the same theory but where Victim was
clothed. See § 30-9-13(C)(2)(a). [RP 215]
{8} The State presented evidence that in August 2017 and again on or about March
2018, Defendant unlawfully touched the clothed breasts of Victim, who was between the
ages of thirteen and eighteen. [RP 154, FOF Nos. 8-9; MIO 3] The State also presented
evidence that on or about January 2018 Defendant unlawfully touched the unclothed
vagina of Victim. [RP 154-55, FOF 101; MIO 4] Victim testified in support of the
accusation, although she could not specify exact dates. [MIO 4-5] The credibility of her
testimony was a matter to be determined by the fact-finder and not this Court. See State
v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that 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).
{9} Our calendar notice addressed Defendant’s challenge to the Victim’s inability to
specify the precise dates of these incidents by noting that such specificity is not required
to support the convictions, and Victim testified to the general dates at issue. See State
v. Lente, 2019-NMSC-020, ¶¶ 61-62, 67-70, 453 P.3d 416 (holding that evidence will be
sufficient where child victims provide the general time period of occurrence). In
response, Defendant points to his own requested findings, which stated that there were
lapses in Victim’s memory and an inability to recall more details of the underlying
incidents. [MIO 7-8, 9-10] Defendant argues that the audio log is too ambiguous to fully
review the testimony, and he requests that we place this case on the general calendar.
[MIO 9-10, 16] However, this Court does not assign cases to the general calendar on
speculation that the record will reveal error. See State v. Sheldon, 1990-NMCA-039, ¶
5, 110 N.M. 28, 791 P.2d 479 (“In light of our determination that the facts set out in [the
appellant]’s docketing statement and memorandum in opposition provide sufficient facts
for review of [the] issue, reassignment to a nonsummary calendar would serve no
purpose other than to allow appellate counsel to pick through the record.”); see also
Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search
the record for facts, arguments, and rulings in order to support generalized
arguments.”).
{10} For the reasons set forth above, we affirm.
{11} IT IS SO ORDERED.
ZACHARY A. IVES, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
SHAMMARA H. HENDERSON, Judge