October 22, 2019- State of New Mexico v. Oshay LeCharles Toney, No. A-1-CA-35882

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-35882	4
OSHAY LECHARLES TONEY	5
a/k/a OSHAY LA CHARLES TONEY,	6
Defendant-Appellant.	7
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	8
Briana H. Zamora, District Judge	9
Hector H. Balderas, Attorney General	10
Maris Veidemanis, Assistant Attorney General	11
Santa Fe, NM	12
for Appellee	13
L. Helen Bennett	14
Albuquerque, NM	15
for Appellant	16
MEMORANDUM OPINION	17
VARGAS, Judge.	18
{1} 	Defendant appeals his convictions for shooting at a motor vehicle (great	19
bodily harm), in violation of NMSA 1978, Section 30-3-8(B) (1993), and aggravated	20
assault with a deadly weapon, in violation of NMSA 1978, Section 30-3-2(A)	21
(1963). He raises three arguments on appeal, as discussed below. We affirm.	22
Court of Appeals of New Mexico
Filed 10/22/2019 9:07 AM

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BACKGROUND	1
{2} 	This case arises out of a violent confrontation between Defendant Oshay	2
Toney (Defendant), Codefendant Thomas Stevenson (Codefendant), and Marvin	3
Ellis (Victim). During the confrontation more than twenty shots were fired into the	4
vehicle Victim was driving (SUV), with both Defendant and Codefendant firing	5
multiple shots. Defendant claimed he fired in self-defense. He provided evidence	6
that Victim was pointing a gun at him, so he began shooting at the SUV. The State	7
introduced contrary evidence indicating that Victim did not have a gun in his hand	8
when the shooting began. The jury rejected Defendant’s version of the events and	9
convicted him of felony murder, voluntary manslaughter, shooting at a motor vehicle	10
resulting in great bodily harm, and aggravated assault with a deadly weapon. The	11
latter conviction was based on the fact that the owner of the SUV was in the	12
passenger seat at the time the shooting began, although she was not hit because	13
Victim pushed her out of the vehicle after the first shots were fired. Subsequently,	14
the district court vacated the felony-murder and voluntary manslaughter convictions	15
on legal grounds not relevant to this opinion. Further facts will be provided as they	16
are relevant to each issue discussed below.	17
Rule 11-404(A)(2)(b)(ii) NMRA	18
{3} 	Defendant argues that the district court erred in its interpretation of Rule 11-	19
404(A)(2)(b)(ii), 	concerning 	admission 	of 	evidence 	of 	prior 	violent 	acts 	by	20

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Defendant. This issue was raised in the appeal pursued by Codefendant, and	1
addressed in our opinion in that case. State v. Stevenson, ___-NMCA-___, ¶¶ 21-33,	2
___ P.3d ___. Defendant is in the same position with respect to this issue as	3
Codefendant, except that the only evidence of prior violent conduct introduced	4
against Defendant was a single prior felony conviction. For the reasons stated in	5
Stevenson, we hold that Defendant did not establish on the record that he was	6
prejudiced by the district court’s erroneous interpretation of the rule, that he was	7
inhibited in his presentation of evidence of prior violent acts of Victim, or that he	8
was denied the ability to present his self-defense claim.	9
Claimed Brady Violation	10
{4} 	As did Codefendant, Defendant maintains the prosecution violated the	11
requirements of Brady v. Maryland, 373 U.S. 83, 87 (1963), by failing to disclose	12
that one of the State’s key witnesses had been arrested a few days after she testified.	13
The arrest was for reasons unrelated to this case but could have been useful for	14
impeachment purposes. However, Defendant does not point to anything in the record	15
on appeal that indicates this issue was preserved below. Defendant does state that it	16
appears the issue was raised orally during the sentencing hearing that occurred on	17
July 30, 2016, but the transcript of that hearing was not included in the record proper	18
on appeal. Defendant requests that “if deemed necessary by the Court, the record be	19
further supplemented with the transcript from June 30, 2016.” However, “[i]t is [the]	20

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defendant’s burden to bring up a record sufficient for review of the issues he raises	1
on appeal.” State v. Jim, 1988-NMCA-092, ¶ 3, 107 N.M. 779, 765 P.2d 195. We	2
therefore decline Defendant’s request.	3
{5} 	We do note there is some indication in Codefendant’s record proper that the	4
failure to disclose issue may have been raised at the sentencing hearing. In	5
responding to Codefendant’s written motion raising the issue, the State asserted that	6
the “same motion” was made orally at Codefendant’s sentencing hearing, and denied	7
by the district court. Also, as Defendant states, the docketing statement in this case	8
asserts that the argument was raised at the sentencing hearing as part of a motion for	9
new trial. In Stevenson, we held that Codefendant’s motion was not sufficient to	10
raise a Brady claim. Stevenson, ___-NMCA-___, ¶ 17. Similarly here, the docketing	11
statement indicates the issue raised was a newly discovered evidence claim, as well	12
as a general “interests of justice” argument. In addition, to the extent the State was	13
correct and the “same motion” was made orally in this case as the one submitted in	14
writing by Codefendant, neither motion was sufficient to raise the Brady claim now	15
argued by Defendant on appeal, for the reasons stated in Stevenson. See id. In sum,	16
we hold that to the extent we can discern what argument was made below concerning	17
the disclosure issue, the argument did not preserve this claim, and we will not	18
address it. See State v. Paiz, 2011-NMSC-008, ¶ 33, 149 N.M. 412, 249 P.3d 1235	19
(“On appeal we only consider issues raised in the trial court unless the issues involve	20

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matters of jurisdictional or fundamental error.”). We also note that while we	1
considered the possibility of fundamental error in Stevenson, ___-NMCA-___, ¶ 18,	2
we do not have enough of a record to engage in the same type of analysis here. We	3
therefore affirm on this issue on the basis of lack of preservation.	4
Sufficiency of the Evidence	5
{6} 	Defendant argues there was not sufficient evidence to find him guilty beyond	6
a reasonable doubt, and that a new trial must be granted because the great weight of	7
the evidence was clearly in his favor. Defendant points specifically to the testimony	8
of Victim’s girlfriend (Girlfriend), who was a passenger in the SUV when the	9
shooting started. Defendant argues that Girlfriend was the only witness who directly	10
testified that Victim did not have a gun in his hand when Defendant began to shoot	11
at the SUV and points to many inconsistencies in Girlfriend’s testimony that cast	12
doubt on her veracity. As Defendant acknowledges, however, it was the jury’s job	13
to assess the credibility of the witnesses and to decide who was telling the truth. See	14
State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing	15
that it is for the fact-finder to resolve any conflict in the testimony of the witnesses	16
and to determine where the weight and credibility lie). The testimony of a single	17
witness constitutes sufficient evidence to uphold a conviction. See, e.g., State v.	18
Roybal, 1992-NMCA-114, ¶ 9, 115 N.M. 27, 846 P.2d 333.	19

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{7} 	In addition, Girlfriend’s testimony was indirectly corroborated by other	1
evidence in the case. For example, a completely disinterested witness who was	2
observing the events from a window testified that the confrontation seemed to have	3
been defused and the SUV was backing out of the driveway when Defendant fired	4
multiple shots at the vehicle. The same witness testified that he did not see anything	5
such as a gun sticking out of the window of the SUV, although the window was a	6
third or a quarter of the way open.	7
{8} 	Viewing the evidence in the light most favorable to the verdict, as we must,	8
State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176, we hold	9
the evidence was sufficient to support Defendant’s convictions.	10
CONCLUSION	11
{9} 	Based on the foregoing, we affirm.	12
{10} 	IT IS SO ORDERED.	13
_________________________________	14
JULIE J. VARGAS, Judge	15
WE CONCUR:	16
_________________________________	17
J. MILES HANISEE, Chief Judge	18
_________________________________	19
KRISTINA BOGARDUS, Judge	20