State v. Follo

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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. 32,825
5 ROBERT FOLLO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Christina P. Argyres, District Judge
9 Gary K. King, Attorney General
10 James W. Grayson, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Nick Sitterly
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
18 {1} Defendant was convicted in metropolitan court for violating a stipulated order
19 of protection, entered pursuant to NMSA 1978, Section 40-13-5 (2008) of the Family
1 Violence Protection Act (FVPA), NMSA 1978, §§ 40-13-1 to -12 (1987, as amended
2 through 2013). He sought a trial de novo in the district court, which the court denied.
3 The district court concluded that Defendant’s appeal was an appeal from a domestic
4 violence conviction and that, therefore, the case should remain on the on-record
5 calendar. We affirm the decision of the district court.
6 BACKGROUND
7 {2} Defendant and Victim were in a relationship from late 2007 until October 2011.
8 After the end of their relationship, in December 2011, Defendant and Victim
9 stipulated to a one-year order of protection, agreeing that their relationship was that
10 of an “intimate partner” as defined by federal law. The order of protection prohibited
11 Defendant from domestic abuse and prohibited Defendant from coming closer than
12 one hundred yards from Victim, her home, and her workplace, except that Defendant
13 could be within twenty-five yards from Victim in a public place, and could be at his
14 parents’ house across the street from Victim’s house, “without any kind of contact”
15 with Victim.
16 {3} Approximately three weeks after entry of the order, Defendant was charged
17 with a misdemeanor “violation of an order of protection, domestic violence.”
18 Defendant waived his right to a jury trial, and the matter was tried on-record to the
19 bench in metropolitan court. Victim and Defendant were the only witnesses to testify
20 at the trial. Victim testified that, on December 30, 2011, Defendant was across the
2
1 street at his parents’ house, when he saw Victim raking leaves in her backyard,
2 approached her house, stood in her driveway, cursed at her, and yelled in an elevated
3 girl-like voice that it was “time to check [her] mail.” Victim testified that she could
4 see Defendant standing in her driveway through the slats in the fence that connected
5 her yard to her driveway but that she ignored him. Receiving no reaction from Victim,
6 Defendant then drove behind the house to the back alley abutting Victim’s backyard,
7 where he yelled more obscenities and threats at Victim, including calling her a
8 “fucking bitch,” and telling her she was “going to pay . . . for leaving him—for even
9 fucking with him.” Victim testified that Defendant was in the alley for approximately
10 eight to ten minutes.
11 {4} Defendant testified that, although he knew about the order of protection, he did
12 not violate it. Rather, he testified that on the day of the alleged incident, he dropped
13 off his granddaughter at his parents’ house, but he never saw Victim, never drove
14 behind her house, and never contacted her.
15 {5} At the conclusion of trial, the metropolitan court entered oral findings and
16 stated that it found beyond a reasonable doubt that the events Victim testified to had
17 occurred. On that basis, the court convicted Defendant for violating the order of
18 protection. During sentencing, Victim told the judge that she was “very afraid of
19 [Defendant]” and that she was “afraid for [her] life.” The metropolitan court
20 subsequently entered judgment on the violation of the order of protection and
3
1 sentenced Defendant to 364 days in custody. However, the court suspended the
2 sentence and placed Defendant on supervised probation, prohibiting him from, among
3 other things, having any contact with Victim “of any kind, directly, indirectly or
4 through a third party,” and requiring him to “undergo an assessment and follow any
5 recommendations made by the [probation officer] for [domestic violence] counseling.”
6 {6} Defendant appealed to the district court, where he demanded a de novo jury trial
7 pursuant to NMSA 1978, Section 34-8A-6(D) (1993). The State filed a motion to deny
8 Defendant’s request for a de novo jury trial and to maintain the case as an on-record
9 appeal. Specifically, the State argued that Defendant was not entitled to a de novo trial
10 because he was convicted of a domestic violence offense in the metropolitan court and
11 that, therefore, he was only entitled to an on-record review. The district court agreed,
12 and relying on State v. Wilson, 2006-NMSC-037, 140 N.M. 218, 141 P.3d 1272, and
13 State ex rel. Schwartz v. Sanchez, 1997-NMSC-021, 123 N.M. 165, 936 P.2d 334,
14 entered an order denying Defendant’s request for de novo jury trial. In its order, the
15 court gave Defendant thirty days to proceed with an on-record appeal by filing a
16 statement of issues. Defendant refused to pursue the case as an on-record appeal, and
17 the district court subsequently dismissed the matter for lack of prosecution and failure
18 to follow the rules of criminal procedure. This appeal of the district court’s decision
19 timely followed.
20 DISCUSSION
4
1 {7} Whether the judgment and sentence issued by the metropolitan court involved
2 domestic violence is a legal conclusion subject to review by the district court and is
3 a question of statutory interpretation that we review de novo. Wilson, 2006-NMSC-
4 037, ¶¶ 5, 6. “Our primary goal when interpreting a statute is to give effect to the
5 Legislature’s intent, which is determined by looking at the plain language used in the
6 statute, as well as the purpose of the underlying statute.” State v. Parrish, 2013-
7 NMCA-066, ¶ 6, 304 P.3d 730, cert. denied, 2013-NMCERT-004, 301 P.3d 858.
8 Defendant contends that he is entitled to a de novo trial in the district court and not an
9 on-record review of the metropolitan court proceeding because the statute does not
10 define a violation of an order of protection as an act of domestic violence. We begin
11 with a review of the district court’s appellate jurisdiction and then turn to the issue in
12 this case.
13 {8} The New Mexico Constitution vests district courts with “appellate jurisdiction
14 of all cases originating in inferior courts.” N.M. Const. art. VI, § 13. In exercising that
15 appellate jurisdiction, “trial shall be had de novo unless otherwise provided by law.”
16 N.M. Const. art. VI, § 27. Appeals from the metropolitan court to district court may
17 be de novo or on the record depending on the type of case. State v. Foster,
18 2003-NMCA-099, ¶ 9, 134 N.M. 224, 75 P.3d 824. For de novo appeals, the district
19 court conducts a new trial as if the trial in metropolitan court had not occurred. Id. For
20 on-record appeals, the district court acts as a typical appellate court, and the district
5
1 court judge simply reviews the record from the metropolitan court trial for legal error.
2 Id.3 {9} Pursuant to Section 34-8A-6(C), the metropolitan court is a court of record in
4 only two instances: first, for cases involving driving while under the influence of
5 intoxicating liquors or drugs, and second, for cases involving domestic violence. With
6 regard to being a court of record for criminal actions involving domestic violence,
7 Section 34-8A-6(C) provides, in part, that
8 [a] criminal action involving domestic violence means an assault or
9 battery under any state law or municipal or county ordinance in which
10 the alleged victim is a household member as defined in the [FVPA].
11 {10} Recognizing that Section 34-8A-6(C) “must be read in pari materia with the
12 definition of domestic abuse in the [FVPA,]” our Supreme Court has held that all
13 domestic abuse actions, as defined by the FVPA rather than the more general
14 definition of domestic violence in Section 34-8A-6(C), should be tried on-record.
15 Sanchez, 1997-NMSC-021, ¶ 7.
16 {11} The FVPA defines “domestic abuse” in relevant part as
17 (2) . . . an incident by a household member against another household
18 member consisting of or resulting in:
19 (a) physical harm;
20 (b) severe emotional distress;
21 (c) bodily injury or assault;
22 (d) a threat causing imminent fear of bodily injury by any
23 household member;
24 (e) criminal trespass;
25 (f) criminal damage to property;
6
1 (g) repeatedly driving by a residence or work place;
2 (h) telephone harassment;
3 (i) harassment; or
4 (j) harm or threatened harm to children as set forth in this
5 paragraph[.]
6 Section 40-13-2(D)(2). Thus, the question of whether Defendant was entitled to a trial
7 de novo or was required to proceed with an on-record appeal depends on whether his
8 metropolitan court conviction involved domestic abuse as that term is defined above.
9 {12} While Sanchez clarified that all domestic abuse actions should be tried on-
10 record, Wilson established the process for district courts to follow when reviewing
11 whether a metropolitan court conviction in a particular case is one involving domestic
12 abuse under the FVPA. Wilson, 2006-NMSC-037, ¶ 9. First, citing Section 40-13-
13 7(E), the Wilson Court noted that the FVPA requires that a “statement shall be
14 included in a judgment and sentence document to indicate when a conviction [in
15 metropolitan court] results from the commission of domestic abuse.” Wilson, 2006-
16 NMSC-037, ¶ 9 (internal quotation marks omitted). Thus, “[t]he starting point for [the
17 district court’s] inquiry must be the [m]etropolitan [c]ourt’s judgment and sentence
18 because this document must include a statement if the case involves domestic
19 [abuse].” Id.; see State v. Krause, 1998-NMCA-013, ¶ 8, 124 N.M. 415, 951 P.2d
20 1076 (“In determining what kind of appeal a defendant is entitled to, we must view
21 the conviction, not the charging document.”). Our Supreme Court concluded that if
22 the judgment does not include such a statement, the metropolitan court “has implicitly
7
1 concluded that the conviction was not based on the commission of domestic abuse.”
2 Wilson, 2006-NMSC-037, ¶ 9.
3 {13} Next, Wilson mandates that the metropolitan court’s ruling regarding whether
4 a conviction was based on the commission of domestic abuse, whether explicit or
5 implicit, is subject to review by the district court. Id. ¶ 10. The metropolitan court’s
6 determination that a case does or does not involve domestic violence is based on the
7 district court’s view of the facts presented and interpretation of the FVPA. Id. Thus,
8 the district court should review the metropolitan court’s factual determinations “with
9 some deference, considering whether they are supported by substantial evidence in the
10 record.” Id. It is with this guidance that we consider the district court’s order in this
11 case.
12 {14} The metropolitan court’s judgment does not explicitly contain a statement
13 indicating that the conviction resulted from the commission of domestic abuse.
14 Instead, the judgment simply states that it “HEREBY sentences . . . Defendant” for
15 violation of a restraining order and then suspends the sentence on the condition of
16 supervised probation with various conditions. We recognize that one of the conditions
17 requires Defendant to “undergo an assessment and follow any recommendations made
18 by the [probation officer] for [domestic violence] counseling.” And another prohibits
19 Defendant from having any contact with Victim “of any kind, directly, indirectly or
20 through a third party.” However, for purposes of reviewing Defendant’s conviction
8
1 on the record, we are not persuaded that these probationary conditions meet the
2 statutory requirement that the judgment shall include a statement indicating that a
3 defendant’s conviction results from the commission of domestic abuse. See § 40-13-
4 7(E); Wilson, 2006-NMSC-037, ¶ 9. Therefore, as Wilson instructs, where the
5 judgment does not include such a statement, the metropolitan court has implicitly
6 concluded that Defendant’s conviction was not a conviction for domestic abuse.
7 Accordingly, we must consider whether the district court properly determined that,
8 based on the metropolitan court’s factual findings, the case was one involving
9 domestic abuse.
10 {15} It is unclear what specific factual findings the district court reviewed when it
11 ultimately determined that “this is an appeal from a domestic violence conviction and
12 that the case should remain on the on-record calendar.”1 Nevertheless, applying the
13 standard of appellate review set forth in Wilson, we conclude that the metropolitan
1
19 For proper appellate review, it would be helpful if the district court in the
20 future would follow the process articulated in Wilson when reviewing a defendant’s
16 metropolitan court conviction. See Wilson, 2006-NMSC-037, ¶ 12 (observing, in a
17 harassment and criminal trespass case, that the district court followed an acceptable
18 procedure when it (1) reviewed the record from the metropolitan court’s hearing, (2)
19 noted the facts the victim’s testimony established, and (3) determined, primarily as a
20 matter of law, that the uncontroverted facts established that because the defendant and
21 the victim were in a continuing personal relationship, the defendant’s conviction
22 involved domestic abuse).
9
1 court’s factual determinations are supported by substantial evidence in the record. See
2 Wilson, 2006-NMSC-037, ¶ 10.
3 {16} As a preliminary matter, the metropolitan court’s judgment and sentence does
4 not contain any written factual findings. However, the court’s oral ruling at the
5 conclusion of trial made clear that it believed Victim’s testimony about the events that
6 took place on December 30, 2011. See San Pedro Neighborhood Ass’n v. Bd. of Cnty.
7 Comm’rs of Santa Fe Cnty., 2009-NMCA-045, ¶ 8, 146 N.M. 106, 206 P.3d 10118 (noting that, although we do not consider oral rulings final orders, they are instructive
9 of the court’s intent where the court’s decision is ambiguous). To the extent Defendant
10 testified to the contrary, the metropolitan court was free to disregard his testimony and
11 find it not credible. See State v. Vigil, 1975-NMSC-013, ¶ 16, 87 N.M. 345, 533 P.2d
12 578 (stating that it is for the fact finder to determine the credibility of the witnesses
13 and the weight to be given to their testimony, and the fact finder may reject a
14 defendant’s version of an incident); Buckingham v. Ryan, 1998-NMCA-012, ¶ 10, 124
15 N.M. 498, 953 P.2d 33 (“[W]hen there is a conflict in the testimony, we defer to the
16 trier of fact.”). “The question [for us on appeal] is not whether substantial evidence
17 exists to support the opposite result, but rather whether such evidence supports the
18 result reached.” Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-
19 044, ¶ 12, 123 N.M. 329, 940 P.2d 177. In this case, we conclude that Victim’s
10
1 detailed testimony at trial provided substantial evidence to support the metropolitan
2 court’s factual determinations regarding the incident in question.
3 {17} We now review de novo the metropolitan court’s application of law to the facts
4 in order to determine whether this case involved the commission of domestic abuse
5 as that term is defined in Section 40-13-2(D) of the FVPA. We agree with the State’s
6 assertion that Defendant’s conduct can properly be characterized as domestic abuse
7 under several of the definitions contained in Section 40-13-2(D) pertaining to
8 household members including “threats causing [Victim] to fear imminent [bodily]
9 harm, criminal trespass, or repeatedly driving by [Victim’s] residence[.]” As we have
10 noted, it is undisputed that Victim and Defendant were household members. See § 40-
11 13-2(E) (including in the definition of “household member” “a person with whom the
12 petitioner has had a continuing personal relationship”). Moreover, the evidence at trial
13 established that, in spite of the fact that Defendant was aware of the terms of the order
14 of protection, he still went into Victim’s driveway, swore at her and told her in a
15 strange voice to check her mail, then, after receiving no reaction, drove around to
16 Victim’s back alley, where he stayed for eight to ten minutes, during which time he
17 called Victim obscene names, swore at her, and threatened that she was “going to pay
18 . . . for leaving him—for even fucking with him.” Victim was afraid and called the
19 police. These facts constitute the type of threats causing “imminent fear of bodily
20 injury” that Section 40-13-2(D)(2)(d) defines as domestic abuse. Consequently, the
11
1 district court did not err when it deferred to the metropolitan court’s factual findings
2 and determined that Defendant’s conviction resulted from the commission of domestic
3 abuse and that, therefore, Defendant was not entitled to a trial de novo. Further,
4 because Defendant refused to pursue an on-record appeal, we affirm the decision of
5 the district court dismissing the appeal.
6 {18} We briefly address Defendant’s arguments. Defendant contends that, because
7 a violation of an order of protection is not specifically referenced in the general
8 “domestic violence” language contained in Section 34-8A-6, and is not explicitly
9 contained in the more specific definitions of domestic abuse found in Section 40-13-
10 2(D), a violation of an order of protection does not constitute an act of domestic abuse.
11 Defendant also argues that the judgment does not include a statement of domestic
12 violence, and because the district court did not address the metropolitan court’s
13 findings, this case must be reversed. Defendant’s arguments ignore the clear holdings
14 of Sanchez and Wilson.
15 {19} Defendant’s contention that a violation of an order of protection is not, in itself,
16 an act of domestic violence fails for two reasons. First, the stipulated order of
17 protection prohibited Defendant from abusing Victim or members of her household.
18 Moreover, the order incorporated the definition of domestic abuse set forth in Section
19 4-13-2(D). Applying the facts supporting Defendant’s conviction against the
20 stipulated order of protection, the only reasonable conclusion to be drawn is that the
12
1 metropolitan court convicted Defendant of domestic abuse. Furthermore, our
2 conclusion is consistent with the holding in Sanchez that on-record appeals are
3 important in all actions defined as domestic abuse in the FVPA. 1997-NMSC-021, ¶
4 9. As Sanchez recognized, because domestic violence is often repeated, requiring all
5 domestic abuse actions to be tried on-record furthers the public policy of requiring
6 victims to only testify once against the accused. Id. Given the factual underpinnings
7 here, this is precisely the type of case that the Legislature intended should be tried on-
8 record.
9 {20} Defendant’s argument that he is entitled to a trial de novo because the judgment
10 does not include a statement of domestic abuse is also misplaced. As we have
11 discussed, when a judgment does not include an express statement that the conviction
12 involved domestic abuse, Wilson requires the district court to review the metropolitan
13 court’s factual determinations, considering whether they are supported by substantial
14 evidence in the record, and then apply the law to the facts. 2006-NMSC-037, ¶ 10. In
15 other words, the court must look at the conduct underlying the conviction to determine
16 whether that conduct constitutes domestic abuse as that term is defined in Section 40-
17 13-2(D) of the FVPA. Notably, Defendant does not discuss, let alone challenge, any
18 of the testimony presented to the metropolitan court in either his brief in chief or reply
19 brief. We assume, therefore, that Defendant agrees with the metropolitan court’s view
20 of Victim’s testimony. Accordingly, reviewing de novo the metropolitan court’s
13
1 application of the law—Section 40-13-2(D)—to the facts in this case, we conclude
2 that the conviction from which Defendant appeals necessarily involved domestic
3 abuse.
4 {21} The district court did not err in determining that Defendant’s conviction in
5 metropolitan court was based on domestic violence and that, therefore, this appeal was
6 properly reviewed on the record presented to the metropolitan court rather than a de
7 novo trial. Defendant’s refusal to file a statement of appellate issues or pursue an on-
8 record appeal properly resulted in dismissal of this matter.
9 CONCLUSION
10 {22} The decision of the district court is affirmed.
11 {23} IT IS SO ORDERED.
12 __________________________________
13 LINDA M. VANZI, Judge
14 WE CONCUR:
15 _________________________________
16 JONATHAN B. SUTIN, Judge
17 _________________________________
18 TIMOTHY L. GARCIA, Judge
14