July 29, 2019- State of New Mexico v. Daniel Rodriguez, No. A-1-CA-37757

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-37757
5 DANIEL RODRIGUEZ,
6 	Defendant-Appellant.
7 	APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 James Waylon Counts, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 	Bennett J. Baur, Chief Public Defender
13 	C. David Henderson, Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	VARGAS, Judge.
18 	{I} 	Defendant appeals his convictions for aggravated burglary, child abuse (two
19 counts), aggravated assault with a deadly weapon (two counts), aggravated battery,
20 and assault. We issued a notice of proposed summary disposition, proposing to
Court of Appeals of New Mexico
Filed 7/29/2019 11:27 AM

1 uphold the convictions. Defendant has filed a memorandum in opposition. After due
2 consideration, we remain unpersuaded. 	We therefore affirm.
3 	{2} 	Defendant has raised one issue, contending that the district court erred in
4 allowing the second day of trial to proceed in his absence. [Unnumbered DS 4; MIO
5 	1-13] He continues to assert that he should not have been deemed to have voluntarily
6 absented himself. [MIO 	1-13] See Rule 5-612(C)(l) NMRA (providing that a
7 defendant' s voluntary absence, after the commencement of trial, does not prevent the
8 trial from proceeding).
9 	{3} 	As we observed in the notice of proposed summary disposition, [CN 3-4] the
10 	record before us is quite limited. However, it does provide relevant insight. As we
11 	previously explained, [CN 2] Defendant's conduct in the course of the pretrial
12 proceedings caused repeated and significant delays. When Defendant failed to appear
13 	yet again on the second day of trial, his attorney asserted that Defendant had informed
14 	him that there had been a medical emergency involving an allergic reaction, and that
15 	he needed an "hour or two." [RP 278] The prosecutor commented vaguely upon
16 	Defendant' s credibility, and requested that they delay no longer than an hour. [RP
17 	278] That request was granted. [RP 278] When Defendant had not appeared an hour
18 	later, defense counsel did not request any further continuance; he simply explained
19 	that he did not plan to call Defendant as a witness. [RP 278] Thereupon, the district
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1 court indicated that it would proceed in Defendant's absence. [RP 278] Over the
2 	course of the next hour a motion for directed verdict and the jury instructions were
3 	addressed. [RP 278-80] Defense counsel then informed the court that Defendant had
4 	communicated that he would be arriving imminently. [RP 281] The district court gave
5 	defense counsel the opportunity to look for him, without success. [RP 281] The
6 	district court commented on Defendant's continuing absence, notwithstanding the
7 repeated assurances that he would be arriving, and observed that he had no right to
8 absent himself. 	[RP 281] 	Closing arguments ensued. 	[RP 281-83] 	Ultimately,
9 Defendant showed up approximately two and one-half hours late. [RP 283] He did
10 not move for a mistrial, or request any other form of relief, and he made no proffer
11 	to the district court, apart from counsel's suggestion that Defendant had "pictures on
12 	[his] phone," and his rhetorical observation that "life happens." [RP 283]
13 	{4} 	Under the circumstances presented in this case, and given the available
14 	information, the district court reasonably determined that Defendant had voluntarily
15 	absented himself. See State v. Snedekar, 1982-NMSC-085,, 25, 99 N.M. 286, 657
16 P.2d 613 ("A reasonable inference is a ... rational and logical deduction from facts
17 admitted and established by the evidence, when those facts are viewed in the light of
18 	common experience." (internal quotation marks and citation omitted)); cf Lopez v.
19 LeMaster, 2003-NMSC- 003 ,, 32, 133 N.M. 59, 61 P.3d 185 (observing that the
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1 district courts may "take judicial notice of its own records"). Although Defendant
2 continues to contend otherwise, his unsubstantiated assertions supply no basis for
3 relief on appeal. See State v. Hall, 2013-NMSC-001, 128, 294 P.3d 1235 ("It is not
4 our practice to rely on assertions of counsel unaccompanied by support in the record.
5 The mere assertions and arguments of counsel are not evidence." (internal quotation
6 marks and citation omitted)).
7 	{5} 	We understand Defendant to contend that the district court should not have
8 determined that Defendant had voluntari ly absented himself without more formally
9 investigating the facts. 	[MIO 2, 4, 10-12] However, we are aware of no authority
10 	which would have required the district court to embark on this sua sponte, and as
11 	previously noted, defense counsel made no such request. We presume that this was
12 	a reasoned decision. See State v. Ortega, 2014-NMSC-Ol 7, 1 56, 327 P.3d 1076
13 	(observing that, on a limited record, "[w]e can safely presume that defense counsel
14 	was [duly] apprised ... and made a tactical decision").
15 	{6} 	We further reject the suggested analogy to authority addressing Defendant's
16 	absence at the commencement of trial proceedings and express waivers. [MIO 2-3,
17 	11] See State v. Padilla, 2002-NMSC-016, 110, 132 N.M. 247, 46 P.3d 1247.
18 	Defendant was initially present, and he did not execute a waiver. He simply failed to
19 	appear on the morning of the second day of trial. Waiver may be inferred from such
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1 conduct. See id. 1 8 (indicating that waiver may be inferred from the voluntary
2 absence of a defendant after trial has begun).
3 	{7} 	Finally, we understand Defendant to suggest that his due process rights were
4 violated, insofar as he was denied the opportunity to testify in his own defense. [MIO
5 	1, 5, 7-8, 12-13] Again, however, the record supplies no support for this assertion.
6 To the contrary, defense counsel indicated that he did not intend to call Defendant.
7 	[RP 278] We therefore reject the premise.
8 	{8} 	Accordingly, for the reasons stated above and in our notice of proposed
9 summary disposition, we affirm.
10 	{9}
11
12
IT IS SO ORDERED.
13 	WE CONCUR:
14 	~t& 	=-
15 	JE 	~- ATTREP, Judge
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