A-1-CA-35127•February 5, 2019- State of New Mexico v. Jonathan D. Owens, No. A-1-CA-35127
February 5, 2019- State of New Mexico v. Jonathan D. Owens, No. A-1-CA-35127
A-1-CA-35127Nmctapp
Gesamter Gesetzestext
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 V. NO. A-1-CA-35127
5 JONATHAN D. OWENS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
8 J.C. Robinson, District Judge
9 Hector H. Balderas, Attorney General
10 Maris V eidemanis, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 L. Helen Bennett, P.C.
14 Linda Helen Bennett
15 Albuquerque, NM
16 for Appellant
17
18 VANZI, Judge.
MEMORANDUM OPINION
19 {I} Jonathan D. Owens (Defendant) appeals his convictions for two counts of
20 attempting to commit extortion, two counts of aggravated assault with a deadly
21 weapon, and the firearm enhancements imposed on each of the aggravated assault
22 counts. This Court's second calendar notice proposed to reverse, in part, and affirm,
23 in part. The State and Defendant both filed a memorandum in opposition to this
Court of Appeals of New Mexico
Filed 2/5/2019 9:31 AM
Mark Reynolds1 Court's proposed disposition. Not persuaded by either, we issued a memorandum
2 opinion affirming the sufficiency of evidence to support Defendant' s convictions but
3 reversing each of the firearm enhancements. See State v. Owens, No. 35,127, mem.
4 op. (N.M. Ct. App. Mar. 7, 2017) (non-precedential). We relied on State v. Branch,
5 2016-NMCA-071, 387 P.3d 250, opinion withdrawn and superseded, 2018-NMCA-
6 031 , 417 P.3d 1141 , to hold that the firearm enhancement of Defendant' s sentence
7 violated double jeopardy. See Owens, No. 35 ,127, mem. op., 2. Our Supreme Court
8 granted a writ of certiorari on April 14, 2017. Order at 1, State v. Owens, No. S-1-
9 SC-36335 (April 14, 2017). On December 18 , 2017-after quashing a writ of
10 certiorari in Branch and remanding to this Court for consideration of our Supreme
11 Court' s opinion in State v. Baroz, 2017-NMSC-030, 404 P.3d 769, which decided
12 issues related to whether firearm enhancements on sentences for aggravated assault
13 with a deadly weapon violated double jeopardy-the Supreme Court remanded this
14 case to our Court for consideration of the same. Order at 1, Owens, No. S-l-SC-
15 36335 (Dec. 18 , 2017). On remand, we withdraw the memorandum opinion issued
16 on March 7, 2017, and substitute this opinion in its stead.
17 {2} Defendant argues that adding the firearm enhancements to his aggravated
18 assault with a deadly weapon sentences violates double jeopardy because the use of
19 a firearm was an element of the crime of aggravated assault with a deadly weapon.
20 [Defendant MIO 1-2] However, our Supreme Court recently rejected this same
21 argument in Baroz. In Baroz, the defendant was convicted of two counts of
2 aggravated assault with a deadly weapon and sentenced to a term of eighteen months,
3 followed by one year of parole, for each conviction. 2017-NMSC-030, ~ 20. The
4 district court enhanced Defendant's sentences on these counts by one year each
5 pursuant to NMSA 1978, § 31-18-16(A) (1993 ), the firearm enhancement statute.
6 Baroz, 2017-NMSC-030, ~ 20. Our Supreme Court rejected the defendant's
7 contention that the firearm enhancement violates double jeopardy because use of a
8 firearm is an element of his charges for aggravated assault with a deadly weapon. Id.
9 The Court concluded that the Legislature intended to authorize an enhanced
10 punishment when a person uses a firearm in the commission of aggravated assault,
11 and thus, "[t]he sentence enhancement does not run afoul of double jeopardy." Id.
12 ~ 27.
13 {3} Given the Supreme Court's holding in Baroz, we conclude that the firearm
14 enhancements in this case do not violate double jeopardy. We withdraw our previous
15 holding vacating the enhancements and instead affirm the district court's
16 enhancements of Defendant's two sentences for aggravated assault with a deadly
17 weapon. The rest of our holdings in our previously issued memorandum opinion, as
18 reiterated below, remain unchanged.
19 {4} This Court's second calendar notice continued to propose affirmance on the
20 sufficiency of evidence to support Defendant's convictions. [CN 2, 3] Defendant's
31 second memorandum in opposition repeats the same argument that the evidence 2 presented at trial did not exclude all reasonable doubt. [Defendant MIO 3] See State 3 v. Mondragon , 1988-NMCA-027, 110 , 107 N.M. 421 , 759 P.2d 1003 (stating that a 4 party responding to a summary calendar notice must come forward and specifically 5 point out errors of law and fact, and the repetition of earlier arguments does not 6 fulfill this requirement), superseded by statute on other grounds as stated in State v. 7 Harris, 2013-NMCA-031 1 3, 297 P.3d 374. We suggest that while Defendant' s 8 testimony to the contrary, if believed by the jury, could have cast doubt on the 9 veracity of the State's witnesses, it was the jury' s duty to weigh the credibility of the 10 witnesses and this Court does not reweigh the evidence. See State v. Salas, 1999- 11 NMCA-099, 1 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact- 12 finder to resolve any conflict in the testimony of the witnesses and to determine 13 where the weight and credibility lie). Based on the evidence, and "indulging all 14 reasonable inferences and resolving all conflicts in the evidence in favor of the 15 verdict[,]" we conclude that the evidence presented at trial was sufficient to exclude 16 all reasonable doubt and supported Defendant's convictions. State v. Cunningham, 17 2000-NMSC-009, 126 , 128 N.M. 711 , 998 P.2d 176; see also State v. Rojo, 1999- 18 NMSC-001 , 1 19 , 126 N.M. 438, 971 P.2d 829 (stating that in determining the 19 sufficiency of evidence, we disregard all evidence and inferences that support a 20 different result). 4
1 {5} This Court's second calendar notice continued to propose that exigent
2 circumstances were established based on the evidence relied upon in the first
3 calendar notice and Defendant's failure to dispute those facts. [CN2 4-5]
4 Specifically, we proposed to conclude that Defendant's warrantless arrest was
5 lawfully based on both probable cause and exigent circumstances, where there was
6 evidence that the deputy received a call informing her that Defendant was pointing
7 a gun at and trying to kill two government officials on his property. [CNl 6]
8 Defendant repeats the argument but does not otherwise point to any error in fact or
9 law to persuade us that our legal conclusion is erroneous. [Defendant MIO 4] See
10 Mondragon, 1988-NMCA-027,, 10.
11 {6} Next, Defendant continues to argue pursuant to State v. Franklin, 1967-
12 NMSC-151,, 9, 78 N.M. 127,428 P.2d 982, and State v. Boyer, 1985-NMCA-029,
13 , 24, 103 N.M. 655, 712 P.2d 1, that his numerous motions, meritorious on their
14 face, should not have been summarily dismissed without a hearing, and that his
15 commitment prior to trial violated NMSA 1978, Section 3 l-9-1.5(A) (1999),
16 because no evidentiary hearing was conducted to establish by clear and convincing
17 evidence that he committed the crimes for which he was accused. [Defendant MIO
18 6] We adhere to our conclusion that it was within the judge's discretion to rule on
19 the motions without a hearing, given that the judge either expressly indicated no
20 hearing was necessary, as there were no facts requiring further factual development
51 [3 RP 582, 643, 663, 689, 691], or made findings analyzing the parties' arguments.
2 [3 RP 582-92; 643-44; 663-64] See State v. Guerro, 1999-NMCA-026, 11 26-28,
3 126 N.M. 699, 974 P.2d 669 (recognizing that the district court's refusal to hold an
4 evidentiary hearing as being within the judge's discretion particularly where claims
5 are based on the judge ' s personal observation and knowledge of the case, where the
6 party fails to state the grounds for relief, or the record contradicts the assertions
7 made). We note Defendant acknowledges that because he is no longer in custody,
8 there is no remedy for this due process claim. [Defendant MIO 6] Because Defendant
9 points to no error in fact or law, we affirm. See Mondragon, 1988-NMCA-027, ,-r 10.
10 {7} For all of these reasons, and those stated in this Court' s first and second
11 calendar notices, we affirm.
12 {8}
13
14
IT IS SO ORDERED.
15 WE CONCUR:
17 J. MILES HANISEE, Judge
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