May 13, 2020- State of New Mexico v. Cesar Rodriguez, No. A-1-CA-36529

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
Filed 5/13/2020 9:20 AM

STATE OF NEW MEXICO, W/

Plaintiff-A ppellee, ~fe4

Mark Reynolds

V. No. A-1-CA-36529
CESAR RODRIGUEZ,

Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Matthew E. Chandler, District J udge
Hector H. Balderas, Attomey General
Santa Fe, NM
M. Victoria Wilson, Assistant Attomey General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Kimberly M. Chavez Cook, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
VARGAS, Judge.
{1} Defendant wes convicted by a jury of aggravated fleaing from a law
enforcement officer, contrary to NMSA 1978, Section 30-22-1.1 (2003); resisting an
officer, contrary to NMSA 1978, Section 30-22-1(C) (1981); possession of a

controlled substance, contrary to NMSA 1978, Section 30-31-23(A), (E) (2011,

2
amended 2019); and possession of drug paraphernalia, contrary to NMSA 1978,	1
Section 30-31-25.1 (2001, amended 2019). On appeal, Defendant raises five issues.	2
First, he challenges whether there was sufficient evidence to support his convictions	3
for 	aggravated 	fleeing 	from 	a 	law 	enforcement 	officer, 	possession 	of	4
methamphetamine 	or 	paraphernalia, 	and 	resisting 	arrest. 	Second, 	Defendant	5
contends that the district court erroneously allowed improper testimony pertaining	6
to his history of contact with local law enforcement. Defendant’s remaining three	7
issues are brought pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428	8
P.2d 982 and 	State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1.	9
Specifically, Defendant argues that: (1) a juror lacked impartiality; (2) the State	10
failed to establish the timeliness of Defendant’s prior conviction used to enhance his	11
sentence; and (3) Defendant received ineffective assistance of counsel. We hold that	12
there was insufficient evidence to prove Defendant had been given a signal to stop	13
by a uniformed law enforcement officer, and therefore reverse his conviction for	14
aggravated fleeing. We affirm Defendant’s remaining convictions.	15
I. 	Insufficient Evidence Supported Defendant’s Conviction for Aggravated	16
Fleeing From a Law Enforcement Officer.	17
{2} 	Defendant asserts there was insufficient evidence to establish the offense of	18
aggravated fleeing from a law enforcement officer. This Court reviews “sufficiency	19
of the evidence on appeal from a highly deferential standpoint.” State v. Dowling,	20
2011-NMSC-016, ¶ 20, 150 N.M. 110, 257 P.3d 930. “The evidence is to be viewed	21

3
in the light most favorable to the [s]tate, resolving all conflicts and making all	1
permissible inferences in favor of the jury’s verdict.” Id. In conducting this review,	2
we “determine whether any rational jury could have found the essential facts to	3
establish each element of the crime beyond a reasonable doubt.” Id.	4
{3} 	When reviewing for sufficiency of the evidence, “the jury instructions become	5
the law of the case against which the sufficiency of the evidence is to be measured.”	6
State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409. At trial, the jury was instructed,	7
For you to find [D]efendant guilty of aggravated fleeing a law	8
enforcement officer as charged in Count 1, the [S]tate must prove to	9
your satisfaction beyond a reasonable doubt each of the following	10
elements of the crime:	11
1. 	[D]efendant operated a motor vehicle;	12
2. 	[D]efendant drove willfully and carelessly in a manner that	13
endangered the life of another person;	14
3. 	[D]efendant had been given a visual or audible signal to stop by	15
a uniformed law enforcement officer in an appropriately marked law	16
enforcement vehicle;	17
4. 	[D]efendant knew that a law enforcement officer had given him	18
an audible or visual signal to stop;	19
5. 	This happened in New Mexico on or about 31st day of August,	20
2016.	21
See UJI 14-2217 NMRA.	22
{4} 	Defendant argues that the evidence to prove the aggravated fleeing charge	23
against him is insufficient on two separate grounds. First, Defendant contends that	24

4
the evidence was insufficient to establish that he was “given a visual or audible	1
signal to stop, . . . by a uniformed law enforcement officer[,]” as required by the	2
statute. Section 30-22-1.1(A). Next, Defendant contends the State failed to provide	3
proof of actual endangerment to another person, as required by Section 30-22-1.1.	4
{5} 	We first consider Defendant’s claim that there was insufficient evidence that	5
he was given a signal to stop by a uniformed officer. Detective Adrianna Munoz of	6
the Clovis Police Department testified that, while she was on duty in her unmarked	7
police unit, she came into contact with Defendant. Detective Munoz testified that	8
she was very familiar with Defendant and knew he had outstanding warrants at the	9
time she came into contact with him. After Detective Munoz followed him for a	10
time, Defendant pulled over and got out of the car he was driving, with Detective	11
Munoz still behind him. When Defendant saw Detective Munoz parked behind him,	12
he got back into the car and drove away. Detective Munoz activated her emergency	13
equipment, including her sirens, and pursued Defendant. Detective Munoz did not	14
testify about whether she was wearing a uniform at the time she encountered	15
Defendant; however, Captain Roger Dial testified that when on duty, Detective	16
Munoz does not wear a uniform and instead, “is usually dressed professionally” and	17
wears a gun and badge on her belt that is not always visible.	18
{6} 	The State contends that, notwithstanding the fact that Detective Munoz was	19
not wearing a uniform at the time she encountered Defendant, a second officer also	20

5
joined in the pursuit; and, while the State did not put on testimony that this officer	1
was in uniform, we should infer from the fact that he was on duty in a marked patrol	2
vehicle that he was wearing a uniform at the time he pursued Defendant. We	3
disagree. “[T]his Court has made clear that an inference must be linked to a fact in	4
evidence.” State v. Slade, 2014-NMCA-088, ¶ 14, 331 P.3d 930. “A reasonable	5
inference is a conclusion arrived at by a process of reasoning[,] which is a rational	6
and 	logical 	deduction 	from 	facts 	admitted 	or 	established 	by 	the	7
evidence.” Id. (alterations, internal quotation marks, and citation omitted); Bowman	8
v. Inc. Cty. of Los Alamos, 1985-NMCA-040, ¶ 9, 102 N.M. 660, 699 P.2d 133 (“An	9
inference is more than a supposition or conjecture. It is a logical deduction from	10
facts which are proven, and guess work is not a substitute therefor.” (internal	11
quotation marks and citation omitted)).	12
{7} 	Here, the State failed to provide any evidence that either Detective Munoz or	13
the second officer who joined the pursuit was wearing a uniform. Nor did the State	14
provide any testimony that an officer on duty in a marked patrol vehicle usually	15
wears a uniform. Instead, the State suggests that we should infer that the second	16
officer was wearing a uniform within the meaning of Section 30-22-1.1(A) from	17
testimony that, unlike Detective Munoz, the second officer was not a detective. We	18
are unpersuaded that the fact that a police officer was not a detective is a sufficient	19

6
substitute for evidence beyond a reasonable doubt that he was actually wearing a	1
police uniform for purposes of the requirements of the statute.	2
{8} 	The State also argues that a comment from defense counsel to a third officer	3
who testified at trial created an inference that patrol officers usually wear police	4
uniforms. Defense counsel observed that the third officer, also an officer on duty in	5
a marked patrol vehicle at the time of the pursuit, wore a patrol officer’s uniform at	6
the time of trial. However, arguments by counsel are not evidence on which we can	7
rely to draw an inference. See State v. Wacey C., 2004-NMCA-029, ¶ 13, 135 N.M.	8
186, 86 P.3d 611 (“Arguments of counsel are not evidence and cannot be used to	9
prove a fact.”). Furthermore, the comments on which the State relies do not support	10
its claim that “an officer on duty in a marked patrol vehicle at the time of the pursuit,	11
wore a patrol officer’s uniform.” Defense counsel stated to the officer, “I’m going	12
to say this. This is going to sound strange. But you look like a cop, right? You’re	13
wearing a uniform, you look like a tough guy, you are a cop, correct?” At no time	14
did defense counsel question, or elicit testimony that the officer was on duty, was in	15
a marked patrol vehicle, or was wearing a patrol officer’s uniform at the time of the	16
pursuit. Instead, he only indicated that because he was wearing a uniform as he	17
testified at trial, he looked like a cop. Nothing in this comment allows us to infer that	18
the second officer who joined the pursuit of Defendant was in uniform.	19

7
{9} 	With regard to the detective who initiated the pursuit at issue, the State	1
explicitly asks this Court to overrule its recent opinion in State v. Montaño, 2018-	2
NMCA-047, 423 P.3d 1, cert. granted, 2018-NMCERT-___ (S-1-SC-37021, July	3
24, 2018). That opinion held that an officer wearing street clothes with equipment	4
on his belt and a badge affixed to his shirt was not “uniformed” for purposes of	5
Section 30-22-1.1(A). Montaño, 2018-NMCA-047, ¶ 47. Initially, we note that the	6
facts in Montaño differ from the facts in this case in that the testimony in Montaño	7
established that at the time of the incident, the officer was dressed in “a dress shirt	8
with tie, dress slacks, and dress shoes. His badge was displayed on the breast pocket	9
of his shirt.” Id. ¶ 2 (internal quotation marks omitted). In this case, the State offered	10
no testimony about what Detective Munoz was wearing at the time she made contact	11
with Defendant. Instead, the only testimony offered addressing her attire was	12
testimony from Captain Dial who testified about what Detective Munoz “usually”	13
wears. Further, Captain Dial’s description of Detective Munoz’s attire was limited	14
to an explanation that it was “professional.” In the absence of testimony about	15
Detective Munoz’s attire when she encountered Defendant and only a limited	16
description of what Detective Munoz “usually” wears, we cannot evaluate whether	17
her attire at the time of the incident would satisfy Section 30-22-1.1, even if we were	18

8
to reconsider Montaño. We therefore decline to reconsider Montaño under the facts	1
of this case.1
2
{10} 	We therefore conclude that the State’s failure to offer any evidence that a	3
uniformed officer was involved in the pursuit of Defendant necessitates a reversal	4
of the conviction for aggravated fleeing. Because we reverse the conviction on that	5
basis, we need not address Defendant’s second sufficiency argument—that he did	6
not actually endanger the life of another person during that pursuit.	7
II. 	Substantial Evidence Supports Defendant’s Convictions of Possession of	8
Methamphetamine and Paraphenalia	9
{11} 	Defendant next asserts that there was no substantial evidence that he was in	10
possession of methamphetamine and a pipe that were found in the car he was driving.	11
Defendant asserts, for instance, that there was no evidence that he handled the items	12
and points out that he was arrested after having left the car in which the contraband	13
was found. Relying upon these facts, Defendant argues that the State’s evidence	14
established no more than his proximity to the contraband and that there was no	15
additional evidence “to permit[] an inference of control.” We note, however, that the	16
contraband at issue was found in plain sight within the car Defendant drove shortly	17
1 We note that our Supreme Court has granted certiorari in Montaño, and the
case is under submission with that Court. 2018-NMCA-047. To the extent that the
State argues Montaño was decided in error, the proceedings on certiorari will
appropriately address that question.

9
after he left the car. The methamphetamine was in a console between the front seats,	1
the pipe was on the passenger’s side front floor, and both items were visible from	2
the driver’s seat. Defendant speculates that “[i]t is just as possible that a passenger	3
in the car at some point could have left the [drugs and paraphernalia] in the car.”	4
However, there was no evidence to suggest that these items may have belonged to a	5
passenger in the car and Detective Munoz testified that she did not see anyone else	6
in the car during her pursuit of Defendant.	7
{12} 	The jury was properly instructed that a person possesses something “when he	8
knows it is on his person or in his presence, and he exercises control over it.” See	9
UJI 14-130 NMRA (defining “possession”). Here, the evidence presented at trial	10
was that the contraband was both visible and accessible from the driver’s seat and	11
Defendant was the only person seen in the car. We conclude that the evidence	12
presented at trial was sufficient to allow a reasonable jury to infer that Defendant	13
was in actual possession of the drugs and paraphernalia.	14
III. 	Sufficient Evidence Was Presented to Support Defendant’s Conviction	15
for Resisting an Officer	16
{13} 	Defendant also challenges the sufficiency of the evidence to support his	17
conviction 	of 	resisting 	an 	officer 	because 	“[n]o 	testimony 	established 	that	18
[Defendant] failed or refused to comply with any specific command.” Before we	19
proceed with our review of Defendant’s claim, however, we note that the criminal	20
information 	filed 	in 	this 	case 	charged 	Defendant 	with 	resisting, 	evading 	or	21

10
obstructing an officer based on Defendant’s refusal to stop when instructed to do so	1
by Officer Jacob Bonner of the Clovis Police Department, contrary to Section 30-	2
22-1(C). By contrast, the criminal complaint and affidavit for arrest warrant charged	3
Defendant with resisting, evading or obstructing an officer based on Defendant’s	4
resisting a peace officer in the lawful discharge of duty, contrary to Section 30-22-	5
1(D). The instruction tendered to the jury followed the criminal complaint and was	6
based on Defendant’s resisting, evading or obstructing “[Detective] Dale Rice . . . in	7
the lawful discharge of [his] duty[,]” mirroring the statutory requirements of	8
Subsection D. See § 30-22-1(D). To further confuse matters, the judgment and	9
sentence entered by the district court adjudged Defendant guilty of violating	10
Subsection C, the refusal to stop provision of the statute, and sentenced him for that	11
violation. As neither of the parties raised this discrepancy on appeal, the instruction	12
tendered to the jury was based on Subsection D, and Defendant’s appellate	13
arguments are also based on Subsection D, we assume that the references in the	14
criminal information and the judgment and sentence, referring to Subsection C, were	15
in error and we proceed to consider Defendant’s claim that there was insufficient	16
evidence to convict him of violating Section 30-22-1(D).	17
{14} 	At the time of his arrest, Defendant had left the car he was driving and was	18
found inside of another parked car. Defendant got out of that second car when	19
commanded to do so. One of the officers involved in the arrest testified that at that	20

11
point, 	other 	officers 	“were 	standing 	around 	with 	weapons 	drawn 	ordering	1
[Defendant] to the ground.” The testimony continued that Defendant stood “in the	2
crook of that [car] door, standing right next to the door” and was standing in an	3
offensive/defensive position looking around and apparently trying to decide whether	4
“fight or flight” were options. This testimony supports the contention that Defendant	5
resisted arrest by failing to comply with officers ordering him to the ground after he	6
emerged from the parked car in which he was found. We conclude that the evidence	7
was sufficient to support Defendant’s conviction of resisting an officer in the lawful	8
discharge of his duties, contrary to Section 30-22-1(D). We remand this matter to	9
the district court with instructions to correct the judgment and sentence to reflect	10
Defendant’s conviction under Section 30-22-1(D).	11
IV. 	The 	Admission 	of 	Testimony 	Pertaining 	to 	Defendant’s 	Previous	12
Interactions With Law Enforcement Did Not Constitute Plain Error	13
{15} 	Defendant claims error in connection with testimony regarding his prior	14
interactions with law enforcement. More specifically, Defendant asserts that four	15
law enforcement officers testified regarding their familiarity with Defendant. With	16
regard to the first two officers, Defendant made no objection during trial, and it	17
appears from the record that both the district court and the parties believed that such	18
testimony could bear upon Defendant’s state of mind at the time of his flight from	19
those two officers. With regard to the third law enforcement witness to testify about	20
prior encounters with Defendant, the officer responded to the question “how many	21

12
times have you come into contact with [Defendant?]” by testifying “I know of three	1
memorable ones; the most violent ones we had were three times,” before being	2
interrupted by an objection.	3
{16} 	At the ensuing bench conference, the district court instructed the State to	4
rephrase the question, being careful not to elicit information that could lead to a	5
mistrial. Direct examination of that witness proceeded without further incident. On	6
cross-examination, however, the witness responded to a question about Defendant’s	7
demeanor at the time of his arrest by testifying that “without going into the prior	8
engagements I’ve had with him on the use of force that we’ve had, I would say that	9
would be the only way I could answer your question accurately.” Another bench	10
conference took place at which the district court offered to give a curative	11
instruction, and told the State to advise its remaining witness that such testimony is	12
inappropriate. The jury was instructed to disregard the testimony, and the cross-	13
examination continued without further incident.	14
{17} 	Finally, during another officer’s testimony, the witness began to answer a	15
question by saying “I’ve had some experience with [Defendant]” before being	16
interrupted by the State rephrasing the question. No further improper testimony was	17
received. On appeal, Defendant asserts that the totality of these repeated references	18
to Defendant’s prior contacts with law enforcement were unduly prejudicial, denied	19
him a fair trial, and require reversal.	20

13
{18} 	At the outset of our analysis, we note that Defendant objected only to the	1
testimony of one witness, did not request a mistrial, and the only relief requested—	2
a curative instruction—was granted by the district court. Accordingly, our review is	3
for plain error. See Rule 11-103(E) NMRA (authorizing district courts to “take	4
notice of a plain error affecting a substantial right, even if . . . not properly	5
preserved”). In order to find plain error, this Court “must be convinced that	6
admission of the testimony constituted an injustice that creates grave doubts	7
concerning the validity of the verdict.” State v. Lucero, 1993-NMSC-064, ¶ 12, 116	8
N.M. 450, 863 P.2d 1071 (internal quotation marks and citation omitted). The	9
doctrine “is intended to be used sparingly as an exception to the rule requiring	10
objections, which promotes efficient and fair proceedings.” State v. Miera, 2018-	11
NMCA-020, ¶ 13, 413 P.3d 491.	12
{19} 	Based on our review, it does not appear that the State intentionally elicited	13
prejudicial testimony. Instead, the relevant testimony was generally volunteered by	14
the witnesses rather than being responsive to the questions asked. Indeed, the most	15
troublesome testimony occurred during cross-examination and resulted in a curative	16
instruction from the court. Considering the improper testimony “ ‘in the context of	17
the testimony as a whole[,]’ ” id. (quoting State v. Montoya, 2015-NMSC-010, ¶ 46,	18
345 P.3d 1056), we cannot say that the testimony constituted an injustice that creates	19
grave doubts about Defendant’s guilty verdict. We find no error in the district court’s	20

14
decision not to take any further corrective actions than those requested—and	1
granted—at trial.	2
V. 	The District Court Did Not Abuse Its Discretion by Allowing a Juror to	3
Remain on the Jury	4
{20} 	Defendant also asserts that he was denied an impartial jury because a member	5
of the jury was acquainted with an assistant district attorney who was present at	6
counsel’s table during the trial. Although the attorney at issue was not present for	7
voir dire, he recognized the juror when he arrived at trial and informed the court of	8
that fact during a break in testimony. Before proceeding with trial, the district court	9
questioned the juror in chambers. The juror acknowledged having played volleyball	10
with the attorney’s wife a couple of years earlier, at that time only had a handful of	11
conversations with the attorney, had not had contact with either the attorney or his	12
wife since playing volleyball, but said she could be fair and impartial. After the juror	13
was excused from chambers, defense counsel acknowledged the juror’s assertion	14
that she could be a fair and impartial juror, but noted that she knew the assistant	15
district attorney and that he was “a very likeable guy, so perhaps that could sway	16
her.” The court pointed out that the juror “believes she can be fair and impartial,”	17
and decided “the court will accept her answer as such.”	18
{21} 	“The [district] court is in a better position than [the appellate court] to assess	19
the demeanor and credibility of prospective jurors.” State v. Romero, 2019-NMSC-	20
007, ¶ 15, 435 P.3d 1231 (internal quotation marks and citation omitted); State v.	21

15
Johnson, 2010-NMSC-016, ¶ 34, 148 N.M. 50, 229 P.3d 523 (noting that the district	1
court “is in the best position to determine . . . any [potential] biases that may preclude	2
jurors from acting fairly and impartially” (internal quotation marks and citation	3
omitted)). Thus, “[w]e will not disturb the [district] court’s decision absent a clear	4
abuse of discretion or a manifest error.” State v. Sutphin, 1988-NMSC-031, ¶ 16,	5
107 N.M. 126, 753 P.2d 1314.	6
{22} 	Defense counsel did not object to the district court’s decision allowing the	7
juror to remain on the jury panel, nor did he provide any evidence to rebut the juror’s	8
statement that she could be fair and impartial and decide the case based on the facts.	9
Given the juror’s passing acquaintance with the attorney at issue, her assertion that	10
she could be fair and impartial, and finding nothing in the record to rebut this	11
assertion, we conclude that the district court did not commit a clear abuse of	12
discretion by allowing the juror to remain on the jury panel.	13
VI. 	The State Met Its Burden of Proving the Timeliness of Defendant’s Prior	14
Conviction	15
{23} 	Defendant also argues that the State failed to establish the timeliness of a	16
conviction used to enhance his sentence under the habitual offender statute. This	17
issue was raised in a motion to reconsider Defendant’s sentence. At the motion	18
hearing, Defendant asserted his understanding that one of the convictions relied upon	19
to enhance his sentence was dismissed as part of a global plea agreement reached in	20
2006. Defendant, however, was unable to produce any other evidence regarding the	21

16
terms of that plea agreement, and the district court denied the relief requested.	1
Because this Court is similarly unable to review matters not appearing in the record,	2
Defendant’s contention regarding the enhancement of his sentence provides no basis	3
for relief in this Court. See State v. Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76,	4
33 P.3d 296 (“Matters not of record present no issue for review.”).	5
VII. 	Ineffective Assistance of Counsel	6
{24} 	Defendant asserts a claim of ineffective assistance of counsel, based upon	7
numerous claimed failures of trial counsel, specifically (1) failure to request a	8
mistrial with regard to the evidentiary error discussed above; (2) failure to pursue	9
various defense theories; and (3) failure to obtain documentary evidence of the	10
global plea agreement referenced above. Defendant does not assert, however, that	11
this claim was developed below, and we find no facts in the record on appeal that	12
would allow us to address it. There are, for instance, no facts currently before this	13
Court upon which we could assess whether trial counsel’s decisions regarding	14
evidentiary objections were the result of a reasonable trial strategy. Similarly, we	15
have no indication whether trial counsel expected evidence supporting alternative	16
defense theories to be admissible, or what evidence the State could have offered in	17
rebuttal. This is unsurprising, since facts bearing directly upon trial counsel’s	18
strategic decisions or communications between counsel and client will not generally	19
appear in the record.	20

17
{25} 	Fortunately, evidence related to such questions can generally be considered	1
by way of habeas corpus proceedings pursuant to Rule 5-802 NMRA, and that is	2
“the preferred avenue for adjudicating ineffective assistance of counsel claims.”	3
Duncan v. Kerby, 1993-NMSC-011, ¶ 4, 115 N.M. 344, 851 P.2d 466. Indeed,	4
“habeas corpus is specifically designed to address such postconviction constitutional	5
claims and is the procedure of choice in this situation.” Id. If Defendant believes he	6
can demonstrate ineffectiveness if given the opportunity to present evidence at a	7
hearing, he remains free to do so pursuant to that rule.	8
CONCLUSION	9
{26} 	For the foregoing reasons, we reverse Defendant’s conviction of aggravated	10
fleeing a law enforcement officer contrary to Section 30-22-1.1, remand this matter	11
to the district court with instructions to correct the judgment and sentence to reflect	12
Defendant’s 	conviction 	under 	Section 	30-22-1(D), 	and 	otherwise 	affirm 	the	13
judgment and sentence entered below.	14
{27} 	IT IS SO ORDERED.	15
_____ _________________________	16
JULIE J. VARGAS, Judge	17

1
WE CONCUR:
Kaskna Bogardus KRISTINA BOGARDUS, Judge
SHAMMARA N. HENDERSON, Judge
18
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