State v. Fernandez

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,252
5 BARBARO FERNANDEZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Kenneth H. Martinez, District Judge
9 Gary K. King, Attorney General
10 Albuquerque, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Steven J. Forsberg, Assistant Appellate Defender
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 KENNEDY, Chief Judge.
1 {1} Barbaro Fernandez (Defendant) appeals a district court judgment affirming his
2 metropolitan court conviction for telephone harassment. In our notice of proposed
3 summary disposition, we proposed to affirm. Defendant has filed a memorandum in
4 opposition, which we have duly considered. As we do not find his argument to be
5 persuasive, we affirm.
6 {2} On appeal to this Court, Defendant’s only argument is that the evidence was
7 insufficient to support his conviction. [DS 15] In this Court’s notice of proposed
8 summary disposition, we proposed to hold that the evidence was sufficient. In
9 Defendant’s memorandum in opposition, he asserts that his statement to the victim
10 that he would “make her pay” for her involvement with another man is not the sort of
11 threat that the Legislature intended to punish. [MIO 1-2] We are not persuaded.
12 Viewing the evidence in the light most favorable to the judgment, this language could
13 reasonably be construed as a threat to commit a tortious or criminal act. Cf. State v.
14 Stephens, 1991-NMCA-019, ¶¶ 17-19, 111 N.M. 543, 807 P.2d 241 (holding that
15 because the defendant’s communication did not include criminal or tortious
16 misconduct, his conduct did not constitute a threat as intended by the Legislature).
17 {3} Therefore, for the reasons stated here and in our notice of proposed summary
18 disposition, we affirm.
19 {4} IT IS SO ORDERED.
2
1 ____________________________________
2 RODERICK T. KENNEDY, Chief Judge
3 WE CONCUR:
4 ___________________________
5 TIMOTHY L. GARCIA, Judge
6 ___________________________
7 J. MILES HANISEE, Judge
3