September 2, 2020- State of New Mexico v. Michael H. Price, No. A-1-CA-38158

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed 9/2/2020 9:42 AM

STATE OF NEW MEXICO, dl
Plaintiff-Appellee, we ;
Mark Reynolds
v: No. A-1-CA-38158

MICHAEL H. PRICE,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Jane Shuler Gray, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
HANISEE, Chief Judge.
(43. Defendant appeals from his conviction for injuring or tampering with a motor
vehicle. In this Court’s notice of proposed disposition, we proposed to summarily

affirm. Defendant filed a memorandum in opposition, which we have duly

considered. Remaining unpersuaded, we affirm.

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{2} 	In his memorandum in opposition, Defendant continues to contend that the	1
evidence is insufficient to support his conviction. [MIO 2] Defendant has not	2
asserted any new facts, law, or argument that persuade us our notice of proposed	3
disposition was erroneous. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124	4
N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar	5
cases, the burden is on the party opposing the proposed disposition to clearly point	6
out errors in fact or law.” ); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M.	7
421, 759 P.2d 1003 (stating that a party responding to a summary calendar notice	8
must come forward and specifically point out errors of law and fact, and the	9
repetition of earlier arguments does not fulfill this requirement), superseded by	10
statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d	11
374. We therefore refer Defendant to our analysis therein.	12
{3} 	To the extent Defendant now contends that his conviction was impermissibly	13
based on conjecture, because that there was no “actual” evidence presented that	14
Defendant damaged the car, we disagree. [MIO 5, 6] Defendant relies on State v.	15
Sizemore, 1993-NMCA-079, ¶¶ 3-6, 115 N.M. 753, 858 P.2d 420, to argue that this	16
Court cannot ignore evidence favorable to him that is undisputed by the State and	17
must consider his version of the facts in our sufficiency analysis. [MIO 4-5]	18
However, 	Sizemore 	carefully considered the specific legal sufficiency of the	19
undisputed evidence of constructive possession of stolen property and did not merely	20

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accept the defendant’s version of the facts in the face of contrary evidence presented	1
by the state. Id.	2
{4} 	Here, the evidence presented at trial established that Defendant was in the area	3
of the vehicle on the day of the incident. [MIO 1- 2] Defendant’s version was that	4
he had cut his hand while fishing nearby, heard a strange noise, and wanted to see if	5
anyone needed help so he walked up to look inside the car window but then left when	6
he did not see anyone. [Id.] We consider this, together with the actual physical	7
evidence—his blood—that was discovered on the outside of the driver’s side door	8
of the vehicle, which had its driver side window removed and placed underneath,	9
and conclude that the evidence was sufficient to support the jury’s determination that	10
Defendant committed the damage to the car. [MIO 1-2] Though Defendant presented	11
an alternative version of events to the jury, the jury was free to reject Defendant’s	12
version of the facts. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971	13
P.2d 829. As such, Defendant’s reliance on Sizemore is inapt.	14
{5} 	Accordingly, for the reasons stated in our notice of proposed disposition and	15
herein, we affirm the district court’s judgment and sentence.	16
{6} 	IT IS SO ORDERED.	17
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_________________________________	19
J. MILES HANISEE, Chief Judge	20

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WE CONCUR:
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JENNIFER L. ATTREP, Judge
ZACHARY ALIYES, Judge
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