A-1-CA-35233 | Omnilex

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Court of Appeals of New Mexico
Filed 6/28/2019 8:33 AM

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Court of Appeals of New Mexico
Filed 6/28/2019 8:33 AM

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IN THE COURT OF APPEALS OF THE STATE OF NEW and d

STATE OF NEW MEXICO,
Plaintiff-Appellee,
V. No. A-1-CA-35233
LEONARD CALVILLO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY

Fernando R. Macias, District Judge
Hector H. Balderas, Attorney General

Eran Sharon, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

MEMORANDUM OPINION
DUFFY, Judge.
4} Defendant was arrested after he and three friends violently forced their way
into the home of Joseph Torrez on New Year’s Eve, 2013, where they ransacked the
house and attacked Joseph. On appeal, Defendant claims that (1) his convictions for

aggravated burglary and attempted aggravated battery violate his right to be free

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from double jeopardy; (2) the jury was improperly instructed on child abuse by
endangerment; (3) there was insufficient evidence to convict him of child abuse by
endangerment; and (4) the trial judge violated his rights under the confrontation
clause under U.S. Const. amends. VI, XIV and N.M. Const. art. II, §§ 14, 18.
Because we agree with Defendant on his first two claims of error, we reverse and
remand for a new trial on the child endangerment charge and with further
instructions to vacate the attempted aggravated battery conviction. We affirm all
remaining matters.

BACKGROUND

23 Joseph Torrez, his fiancée, Natasha Munoz, their two-year-old son (Child),
and two friends were at Joseph’s house celebrating New Year’s Eve in 2013.
Natasha’s sister joined them after leaving another party where she had been attacked
by a couple of girls. Natasha, upset about what had happened to her sister, used
Joseph’s phone to call the girls at the other party and argued with them. A short time
later, Defendant, who had been at the other party, called Joseph; the men argued,
insulted each other, and escalated their threats to fight. During the conversation,
Defendant threatened to kill Joseph and his family. Joseph told Defendant that they
could handle their disagreement later and stated that his son was home.

{3} Soon thereafter, Defendant and three other men arrived at Joseph’s house.

Joseph saw Defendant throw a potted plant through his son’s bedroom window,

shattering the glass where Child was sleeping. Defendant and his friends then broke
the glass screen door and tried to enter the house. Although Joseph and Natasha tried
to hold the front door shut, one of the men kicked the door in and all four eventually
pushed their way inside the house. Two of the men ran after Joseph while Defendant
flipped over couches, knocked everything off the walls, yelled obscenities, and
threatened to kill Joseph and his son. One of Joseph’s friends called 911 and
Natasha’s sister took Child to a closet to hide.

{4} Defendant grabbed a knife from the kitchen and while his friends kicked and
punched Joseph, Defendant attempted to stab him. Joseph, an experienced mixed
martial arts fighter, was able to protect himself and eventually fought off his
attackers, although he sustained several injuries during the confrontation. Defendant
and his friends fled before the police arrived.

{5} Ajury convicted Defendant of aggravated burglary, contrary to NMSA 1978,
Section 30-16-4(B) or (C) (1963), attempt to commit aggravated battery, contrary to
NMSA 1978, Sections 30-28-1 (1963) (attempt) and NMSA 1978, Section 30-3-5
(1963) (aggravated battery), child abuse by endangerment, contrary to NMSA 1978,
Section 30-6-1(D)(1) (2009), and criminal damage to property, contrary to NMSA

1978, Section 30-15-1 (1963).

DISCUSSION

I. Child Abuse by Endangerment

A. Jury Instruction

(6; Defendant argues that the district court erred in instructing the jury on the
charge of child abuse by endangerment because the given instruction was not the
current Uniform Jury Instruction (UJI) and failed to adequately convey the mens rea
standard. The current instruction, UJI 14-612 NMRA (2015), was adopted effective
April 3, 2015, three months before Defendant’s trial on June 29, 2015. The jury
received the former instruction at trial, UJI 14-604 NMRA (2000) (withdrawn April
3, 2015), without objection. Because Defendant failed to preserve this issue at trial,
we review for fundamental error. See Rule 12-321 NMRA; State v. Barber, 2004-
NMSC-019, § 8, 135 N.M. 621, 92 P.3d 633 (stating that unpreserved jury
instruction issues are reviewed only for fundamental error). “When reviewing jury
instructions for fundamental error, we apply the fundamental error standard of
review to the same inquiry we perform for review for reversible error—whether the
instruction or instructions would confuse or misdirect a reasonable juror due to
contradiction, ambiguity, omission, or misstatement.” State v. Gee, 2004-NMCA-
042, 7 8, 135 N.M. 408, 89 P.3d 80. “For fundamental error to exist, the instruction
given must differ materially from the uniform jury instruction, omit essential

elements, or be so confusing and incomprehensible that a court cannot be certain

that the jury found the essential elements under the facts of the case.” State v.
Caldwell, 2008-NMCA-049, ¥ 24, 143 N.M. 792, 182 P.3d 775 (internal quotation
marks and citations omitted). “The rule of fundamental error applies only if there
has been a miscarriage of justice, if the question of guilt is so doubtful that it would
shock the conscience to permit the conviction to stand, or if substantial justice has
not been done.” State v. Orosco, 1992-NMSC-006, § 12, 113 N.M. 780, 833 P.2d
1146; see also State v. Swick, 2012-NMSC-018, { 46, 279 P.3d 747 (“[F]undamental
error occurs when, because an erroneous instruction was given, a court has no way
of knowing whether the conviction was or was not based on the lack of the essential
element.”).

{7} “Child abuse by endangerment, as opposed to physical abuse of a child, is a
special classification designed to address situations where an accused’s conduct
exposes a child to a significant risk of harm, even though the child does not suffer a
physical injury.” State v. Chavez, 2009-NMSC-035, J 15, 146 N.M. 434, 211 P.3d
891 (emphasis, internal quotation marks, and citation omitted). “A third-degree
felony, child abuse by endangerment occurs when an adult knowingly, intentionally,
or negligently places a child ‘in a situation that may endanger the child’s life or
health.” Jd. (quoting Section 30-6-1(D)-(E)). The statute defines the term

“negligently,” stating that “ ‘negligently’ refers to criminal negligence and means

that a person knew or should have known of the danger involved and acted with a
reckless disregard for the safety or health of the child.” Section 30-6-1(A)(3).

{8}. Our Supreme Court observed that our courts have struggled over the years to
define the mens rea standard for child abuse by endangerment, noting a particular
concern for language that did not adequately differentiate criminal negligence from
civil negligence. See State v. Consaul, 2014-NMSC-030, 4 28, 332 P.3d 850; see
also Santillanes v. State, 1993-NMSC-012, J 31, 115 N.M. 215, 849 P.2d 358
(stating that the Legislature did not intend a felony punishment to attach to ordinary
negligent conduct). Two decades ago, in State v. Mascarefias, 2000-NMSC-017,
q 13, 129 N.M. 230, 4 P.3d 1221, the Court acknowledged that the term “knew or
should have known,” which is used in the statute and the UJI given in Defendant’s
trial to define “reckless disregard,” is typically associated with a civil negligence
standard. See also Consaul, 2014-NMSC-030, { 39 (“We also share the concern
expressed in our precedent over continued use of the phrase ‘knew or should have
known’ in our jury instructions because of its close association with principles of
civil negligence and ordinary care.”). As a result, the Court stated, “we remain
concerned that our present jury instructions do not faithfully capture the true
legislative intent behind Section 30-6-1 and that they potentially contribute to jury
confusion, resulting in unjust child abuse convictions.” Jd. J 35. Following its

holding in Consaul, our Supreme Court adopted a new UJI for child abuse, UJI 14-

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612, which clarified the mens rea standard for child abuse by endangerment and
removed the term “knew or should have known” from the definition of reckless
disregard.'

{9} The instruction given at Defendant’s trial, containing the very language our
Supreme Court found objectionable in Consaul, provided

For you to find [Defendant] guilty of child abuse which did not
result in death or great bodily harm, as charged in Count 5, the state

must prove...

2. The defendant acted intentionally or with reckless disregard. To
find that [Defendant] acted with reckless disregard, you must find that
[Defendant] knew or should have known [D]efendant’s conduct created
a substantial and foreseeable risk, [D]efendant disregarded that risk and
[D]efendant was wholly indifferent to the consequences of the conduct
and to the welfare and safety of [Child].

'UJI 14-612 now defines the mens rea for child abuse by endangerment as
follows:

[The defendant] showed a reckless disregard without justification for
the safety or health of [the child]. To find that [the defendant] showed
a reckless disregard, you must find that [the defendant’s] conduct was
more than merely negligent or careless. Rather, you must find that [the
defendant] caused or permitted a substantial and unjustifiable risk of
serious harm to the safety or health of [the child]. A substantial and
unjustifiable risk is one that any law-abiding person would recognize
under similar circumstances and that would cause any law-abiding
person to behave differently than [the defendant] out of concern for the
safety or health of [the child].

See UJI 14-604 (2000). Defendant argues that instruction improperly permitted the
jury to convict him based on mere negligence, which the Legislature did not intend
to punish criminally. See Consaul, 2014-NMSC-030, { 36 (“[T]he Legislature did
not mean to punish ordinary acts of negligence when it amended the child abuse
statute to require proof of recklessness.”); Santillanes, 1993-NMSC-012, J 28
(“[W]e conclude that the civil negligence standard, as applied to the child abuse
statute, improperly goes beyond its intended scope and criminalizes conduct that is
not morally contemptible.”). We agree. By allowing the jury to consider ordinary
negligence as a basis for the conviction, the instruction permitted the jury to convict
Defendant for behavior that may not have been criminal. See, e.g., State v. Stampley,
1999-NMSC-027, 7 48, 127 N.M. 426, 982 P.2d 477 (holding that because the jury
had no alternative but to rely on the jury instructions for the definition of the crime,
instructions containing an erroneous definition could allow the jury to convict for a
nonexistent crime); see also State v. Magby, 1998-NMSC-042, 4 15, 126 N.M. 361,
969 P.2d 965 (“[T]here [was] a distinct possibility that the jury understood the
applicable negligence standard to criminalize ‘careless’ conduct or perhaps only
‘extremely careless’ conduct.”), overruled on other grounds by Mascarefias, 2000-
NMSC-017. Consaul made clear that the former UJI improperly defined the
appropriate mens rea, thereby “potentially contribut[ing] to jury confusion, resulting

in unjust child abuse convictions”—the very standard that gives rise to fundamental

error. 2014-NMSC-030, J 35. Because we will “not uphold a conviction if an error
implicate[s] a fundamental unfairness within the system that would undermine
judicial integrity if left unchecked[,]” we are required to reverse Defendant’s
conviction based on the deficiencies in the jury instruction. Barber, 2004-NMSC-
019, { 18 (internal quotation marks and citation omitted).

B. Sufficiency of the Evidence

{10} Defendant also asserts that there was insufficient evidence to support his
conviction of child abuse by endangerment. “By addressing [a defendant’s] claim of
insufficient evidence and determining that retrial is permissible, we ensure that no
double jeopardy concerns are implicated.” Mascarefias, 2000-NMSC-017, 7 31; see
also State v. Rosaire, 1996-NMCA-115, 4 20, 123 N.M. 250, 939 P.2d 597 (“[O]Jur
review of the sufficiency of the evidence is analytically independent from the issue
of the defect in the jury instruction[.]”), aff'd, 1997-NMSC-034, 123 N.M. 701, 945
P.2d 66.

4113. “To determine whether the evidence presented was sufficient to sustain the
verdict, we must decide whether substantial evidence of either a direct or
circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Brietag, 1989-
NMCA-019, § 9, 108 N.M. 368, 772 P.2d 898. We view the evidence in the light

most favorable to the verdict, indulging all reasonable inferences and resolving all

conflicts in the evidence in favor of the verdict. State v. Cunningham, 2000-NMSC-
009, 7 26, 128 N.M. 711, 998 P.2d 176. The jury is free to reject Defendant’s version
of the facts, State v. Rojo, 1999-NMSC-001, 4 19, 126 N.M. 438, 971 P.2d 829, and
we do not consider the merit of evidence that may have supported a different result.
State v. Kersey, 1995-NMSC-054. § 11, 120 N.M. 517, 903 P.2d 828.

{123 For the jury to convict Defendant, it had to find that that Defendant caused
Child to be placed in a situation that endangered the life or health of Child, and that
Defendant acted intentionally or with reckless disregard. Section 30-6-1(D)(1). The
evidence adduced at trial established that Defendant threw a potted plant through
Child’s bedroom window, where Child was sleeping. Before Defendant broke into
the home, he threatened to kill Child and his father and was aware that Child was
somewhere in the home. Defendant argues that he was unaware that Child was in
the room before he threw the pot through the window.

{133} A reasonable jury, however, may consider Defendant’s act of throwing the
pot through the window as placing Child within the zone of danger. See State v.
Gonzales, 2011-NMCA-081, 9 25, 150 N.M. 494, 263 P.3d 271 (“[T]he crime is
committed when a defendant places a child within the zone of danger and physically
close to an inherently dangerous situation.” (internal quotation marks and citation
omitted)), aff'd on other grounds, 2013-NMSC-016, J 25, 301 P.3d 380; see also

State v. Trujillo, 2002-NMCA-100, § 20, 132 N.M. 649, 53 P.3d 909 (“[T]here may

be instances when the risk of emotional harm from a similar incident might be
sufficient to support a conviction based on endangerment.”). Likewise, the State
presented evidence that Defendant knew that Child was in the home, and we
conclude that reasonable minds could find that Defendant had the requisite intent
necessary to support a conviction. State v. Ramirez, 2018-NMSC-003, J 17, 409 P.3d
902 (affirming the defendant’s conviction for child endangerment when the
defendant fired multiple shots into a vehicle with children sitting in the back seat).
Viewing the evidence in the light most favorable to the verdict, the evidence is
enough that a rational juror could have found beyond a reasonable doubt the essential
facts required for conviction. Therefore, retrial is permissible.

II. Double Jeopardy

{14} Defendant argues that his convictions for aggravated burglary and attempted
aggravated battery violate his right to be free from double jeopardy. “A double
jeopardy challenge is a constitutional question of law which we review de novo.”
State v. Swick, 2012-NMSC-018, § 10, 279 P.3d 747 (citing State v. Gallegos, 2011-
NMSC-027, 9 51, 149 N.M. 704, 254 P.3d 655). There are two classifications of
double jeopardy cases: double-description cases and unit-of-prosecution cases. Id.
This case is a double-description case, as Defendant was “charged with violations of

multiple statutes that may or may not be deemed the same offense for double

jeopardy purposes.” Swafford v. State, 1991-NMSC-043, J 9, 112 N.M. 3, 810 P.2d
1223.

{15} “Double-description claims are subject to the two-part test set forth in
Swafford[.]” Swick, 2012-NMSC-018, § 11. The first step requires us to determine
whether the conduct involved was unitary, and the second step “focuses on the
statutes at issue to determine whether the [L]egislature intended to create separately
punishable offenses.” Swafford, 1991-NMSC-043, 25. “Only if the first part of the
test is answered in the affirmative, and the second in the negative, will the double
jeopardy clause prohibit multiple punishment in the same trial.” Jd.

A. Unitary Conduct

{16} “ ‘The proper analytical framework for determining unitary conduct is
whether the facts presented at trial establish that the jury reasonably could have
inferred independent factual bases for the charged offenses.’ ” State v. Dominguez,
2014-NMCA-064, § 12, 327 P.3d 1092 (alteration omitted) (quoting State v. Franco,
2005-NMSC-013, J 7, 137 N.M. 447, 112 P.3d 1104). “[T]he task is merely to
determine whether the conduct for which there are multiple charges
is... distinguishable.” Swafford, 1991-NMSC-043, ¥ 28. “[W]e consider whether
Defendant’s acts are separated by sufficient ‘indicia of distinctness.’ ” State v.
DeGraff, 2006-NMSC-011, 9 27, 139 N.M. 211, 131 P.3d 61. “The court may

consider as ‘indicia of distinctness’ the separation of time or physical distance

between the illegal acts, ‘the quality and nature’ of the individual acts, and the
objectives and results of each act.” State v. Mora, 2003-NMCA-072, § 18, 133 N.M.
746, 69 P.3d 256 (internal quotation marks and citations omitted).

{17} In order to convict Defendant of attempted aggravated battery, the jury had to
find that Defendant “began to do an act which constituted a substantial part of the
aggravated battery with a deadly weapon but failed to commit the aggravated battery
with a deadly weapon.” In order to convict Defendant of aggravated burglary in this
case, the jury was required to find that Defendant “entered the dwelling with the
intent to commit first degree murder by a deliberate killing or aggravated battery
with a deadly weapon once inside” and that Defendant “became armed with a knife
after entering or touched or applied force to Joseph Torrez in a rude or angry manner
while inside.” Defendant argues that the same act of becoming armed with a knife
was used to form the basis for both his attempted aggravated battery and aggravated
burglary convictions.

{18} In evaluating whether the conduct that formed the basis for both charges is
unitary, we look at whether one crime is completed before another and also whether
“the conviction is supported by at least two distinct acts or forces, one which
completes the first crime and another which is used in conjunction with the
subsequent crime.” State v. Montoya, 2011-NMCA-074, § 31, 150 N.M. 415, 259

P.3d 820 (internal quotation marks and citation omitted). The aggravated burglary

in this case was not complete until Defendant did some further act once inside the
home, and the aggravated burglary instruction provided two alternative acts for the
jury to consider: (1) that Defendant armed himself with a knife upon entering, or (2)
that he touched or applied force to Joseph Torrez in a rude or angry manner—i.e.,
that Defendant committed battery. See NMSA 1978, § 30-3-4 (1963) (“Battery is the
unlawful, intentional touching or application of force to the person of another, when
done in a rude, insolent or angry manner.”); compare State v. Luna, 1982-NMCA-
150, 12, 99 N.M. 76, 653 P.2d 1222 (holding that Section 30-16-4(B) is violated
“by a person who in the commission of a burglary becomes armed with an unloaded
firearm), with State v. Office of Public Defender ex rel. Muqqddin, 2012-NMSC-
029, | 60, 285 P.3d 622 (stating that simple burglary is complete upon entry). Under
the first alternative, the same conduct—Defendant’s act of arming himself with a
knife—formed the factual basis for the burglary charge and the “overt act” in
furtherance of the attempted aggravated battery charge, evidenced by the State’s
argument that “[w]e know he [intended to commit aggravated battery] because he
picked up that knife and tried to stab Joseph Torrez with it.”

{19} The jury’s verdict does not indicate whether it found that the aggravated
burglary was accomplished by Defendant’s act of arming himself with a deadly
weapon after entering or by committing a battery, and therefore, we do not know

which of the alternatives Defendant’s aggravated burglary conviction was based

upon. “Under these circumstances, we will presume that the conduct underlying
Defendant’s convictions...‘was based on a theory that potentially violated
Defendant’s double jeopardy rights.’ ” State v. Crain, 1997-NMCA-101, 4 22, 124
N.M. 84, 946 P.2d 1095; State v. Rodriguez, 1992-NMCA-035, ¥ 14, 113 N.M. 767,
833 P.2d 244 (stating that when a crime is presented to a jury in alternative and an
appellate court cannot tell if the jury found constitutional or unconstitutional
alternative, the conviction must be set aside). Because one of the alternative bases
for aggravated burglary in this case was the act of becoming armed with a knife once
inside, and the State relied on that evidence to establish both crimes, we hold that
the conduct is unitary. See Swick, 2012-NMSC-018, § 27, 279 P.3d 747 (holding that
a double jeopardy violation occurred when the State’s theory of the case relied on
the same facts to support convictions for aggravated battery and attempted murder).
B. __ Legislative Intent

{20} “Having determined that the conduct was unitary, we turn to the second prong
of our inquiry under a double-description analysis, which is to determine if the
Legislature intended for the unitary conduct to be punished as separate offenses.”
Montoya, 2011-NMCA-074, § 40. “When, as here, the statutes themselves do not
expressly provide for multiple punishments, we begin by applying the rule of
statutory construction from Blockburger v. United States, 284 U.S. 299 .. . (1932),

to determine whether each provision requires proof of a fact that the other does not.”

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State v. Branch, 2018-NMCA-031, § 24, 417 P.3d 1141. If all elements of one statute
are “subsumed within the other, then the analysis ends and the statutes are considered
the same for double jeopardy purposes.” State v. Silvas, 2015-NMSC-006, 12, 343
P.3d 616. “When applying the Blockburger test to offenses that may be charged in
alternate ways, we focus our inquiry on the elements of the statute as they were
presented in the jury instructions.” Montoya, 2011-NMCA-074, 7 41; see also Swick,
2012-NMSC-018, 421 (“[O]ur courts must evaluate legislative intent [under the
modified Blockburger analysis] by considering the State’s legal theory independent
of the particular facts of the case[.] Our courts may do this by examining the charging
documents and the jury instructions given in the case.”).

{21} Turning now to the jury instructions to evaluate the State’s legal theory in this
case, the jury was instructed on the elements of attempted aggravated battery as
follows:

1. [D]efendant intended to commit the crime of aggravated battery
with a deadly weapon;

2. [D]efendant began to do an act which constituted a substantial
part of the aggravated battery with a deadly weapon but failed to

commit the aggravated battery with a deadly weapon;

3. This happened in New Mexico on or about the Ist day of January,
2014.

Comparatively, the jury was instructed on the elements of aggravated burglary as

follows:

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1. [D]efendant entered a dwelling without authorization;

2. [D]efendant entered the dwelling with the intent to commit first
degree murder by a deliberate killing or aggravated battery with a
deadly weapon once inside;

3. [DJjefendant became armed with a knife after entering or touched
or applied force to Joseph Torrez in a rude or angry manner while

inside;

4. This happened in New Mexico on or about the Ist day of January,
2014.

Although the language is not identical, elements 1, 2, and 3 of attempted aggravated
battery are substantively identical to elements 2, 3, and 4 of aggravated burglary.
Both instructions require the same intent to commit aggravated battery, and the same
act—becoming armed with a knife—forms a basis to convict for both crimes in this
case. “Our reading of the instructions is confirmed when we look to how the
prosecutor asked the jury to apply these instructions.” Silvas, 2015-NMSC-006,
4 19. The prosecutor stated in closing,

[For count three, aggravated burglary] the defendant became armed

with a knife.... He picked up a knife in the kitchen as they were

fighting with Joe Torrez....

Count four... attempt to commit aggravated battery with a deadly

weapon. The State has to prove that the defendant intended to commit

the crime of aggravated battery with a deadly weapon. We know he did

because he picked up that knife and tried to stab Joseph Torres with it.”

22} Because the State’s legal theory for both crimes rested upon Defendant’s

unitary conduct and the charges require the same mens rea, we conclude that the

attempted aggravated battery charge is subsumed by the aggravated burglary charge.
Thus, convictions of both offenses violated Defendant’s right to be free from double
jeopardy. This does not mean that a defendant could never be punished for both
aggravated burglary and attempted aggravated battery. As we said in Montoya,
“[h]ad the jury in this case been instructed only on a theory based on non-unitary
conduct,” both convictions may have been upheld. 201 1-NMCA-074, § 43 (stating
that convictions for second-degree criminal sexual penetration and kidnapping may
have been upheld if the jury had been instructed on a theory based on non-unitary
conduct). Accordingly, we remand to the district court with instructions to vacate
Defendant’s conviction for attempted aggravated battery. Jd. (stating that “if double
jeopardy is violated, the conviction for the lesser offense should be vacated”).

II. Confrontation Clause

(233 Defendant argues that the district court violated his constitutional right to
confront the witnesses against him by (1) failing to allow him to impeach a witness’s
credibility with her prior felony conviction, and (2) by failing to grant his motion to
exclude witnesses. See U.S. Const. amends. VI, XIV; N.M. Const. art. II, §§ 14, 18.
A. Prior Felony Convictions

24 Defendant argues that the district court erred by excluding evidence of
Natasha Munoz’s prior conviction for breaking and entering. Defendant asserts that

this conviction was relevant to her credibility and that he should have been allowed

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to use the conviction to impeach her. After reviewing the briefs and the record,
however, it appears that Defendant raised no objection to the district court’s rulings
and therefore failed to preserve this issue for appeal.

25} Before trial commenced, the district court discussed preliminary matters with
counsel in chambers, on the record. In response to the district court’s questions about
the final list of witnesses, the prosecutor indicated that if Defendant testified, the
State would seek to impeach his credibility with his prior felony convictions. In
response, defense counsel stated that he would seek to impeach Natasha Munoz with
her conviction for breaking and entering. The following exchange occurred:

Prosecutor: Your Honor, if the defendant decides to testify, the

State will seek to impeach his credibility with a
prior felony conviction.

I would seek to use those for impeachment
purposes. However, I would just ask, Is it true you
were convicted of—previously convicted of a
felony offense in these years? I would not seek to
name the offense because they don’t appear to be an
offense of dishonesty.

Court: That’s correct. And, again, [defense counsel], he’s
giving notice of it.

Defense: I’ve had notice, Judge. I received copies of the
judgments. While we’re on the subject, may I
inform the Court of a similar situation on the
defense, or do you want me to wait till we get to my
side, Judge?

l Court: No, go ahead.
2 Defense: One of the witnesses the State is intending to call by
3 the name of Natasha Munoz, Judge, I will also be
4 seeking to impeach her by way of a conviction for
5 breaking and entering.
6 Court: And the conviction occurred when?
7 Defense: The conviction occurred, I believe, in 2013.
8 Court: And, again, the Court would place the same
9 limitations, that you can ask if she has a prior felony
10 conviction.
11 Defense: Not as to what it was, Judge?
12 Court: No, not as to what it is, because I don’t necessarily
13 consider that — [Interruption]
14 Defense: Judge, may I continue? Natasha Munoz, I also
15 understand her probation was previously revoked
16 and reinstated, Judge. Will the court allow me to go
17 into those matters as to her prior conviction?
18 Court: When you say go into it, I don’t have any problems
19 with you asking whether she has violated the terms
20 of her probation. And if you can—again, in good
21 faith because you know that that’s occurred or you
22 have something that substantiates it. I’m not going
23 to let you get into the individual items that were the
24 basis for it unless you can show some greater
25 relevance.
26 Defense: Okay.
27| 26; When Ms. Munoz testified later in the trial, defense counsel asked her whether
28] she was convicted of a felony in New Mexico on November 22, 2013, and placed on
20

two years’ probation, to which she responded, “yes.” Defense counsel also asked
whether her probation was violated and revoked, to which she also responded, “yes.”
Defendant does not point to anything in the record showing that he objected to the
initial pre-trial ruling on the scope of the impeachment or sought a further ruling
from the court at trial to introduce the nature of Ms. Munoz’s prior felony conviction.
Consequently, we conclude that Defendant failed to preserve this claim of error for
appeal and decline further review of this issue. State v. Lucero, 1993-NMSC-064,
q 11, 116 N.M. 450, 863 P.2d 1071 (stating that a defendant must obtain a clear
ruling from the district court in order to preserve the grounds alleged to have been
in error).

B. Motion to Exclude

27}, Defendant also argues that the district court erred in denying his motion to
strike prosecution witnesses. Leading up to the June 29, 2015 trial setting, the
Defendant had not interviewed four of the State’s witnesses. On June 25, 2015,
Defendant filed a motion to strike the witnesses, arguing that the State was at fault
for the delay. The State filed a response to the motion to strike the following day,
and the parties completed all four witness interviews that afternoon over the course
of four hours. Defense counsel tape-recorded the interviews. On Monday, June 29,
2015, the district court heard the motion to strike as part of the preliminary matters

before commencing trial that morning. Defense counsel argued that the timing of the

interviews was prejudicial because it had taken valuable trial preparation time, and
that he did not have time to prepare written transcripts of the interviews to use for
impeachment during trial. However, he conceded that the witnesses provided
favorable testimony for the defense and that he did not actually want to exclude
them, stating that “the remedy is not to strike the witnesses. The remedy is to
continue the trial so that I can get these transcriptions.” In response, the State pointed
out that Defendant had not transcribed other witnesses interviews conducted months
earlier and that the defense had the audio recordings of the interviews available to
use at trial, if necessary. The district court denied the motion to strike and
Defendant’s oral motion for a continuance.

28} Because Defendant abandoned his request for witness exclusion at the
hearing, we limit our review to the district court’s decision to deny Defendant’s oral
motion for a continuance. “The grant or denial of a continuance is within the sound
discretion of the district court, and the burden of establishing abuse of discretion
rests with the defendant.” State v. Salazar, 2007-NMSC-004, 4 10, 141 N.M. 148,
152 P.3d 135. “An abuse of discretion occurs when the ruling is clearly against the
logic and effect of the facts and circumstances of the case. We cannot say the
[district] court abused its discretion by its ruling unless we can characterize it as

clearly untenable or not justified by reason.” Rojo, 1999-NMSC-001, 41 (internal

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quotation marks and citation omitted). In Salazar, our Supreme Court stated that
In the context of a continuance requested for the purpose of obtaining
a witness’s testimony, these factors serve to balance a criminal
defendant’s constitutional right to compulsory process, U.S. Const.
amends, VI, XIV, with the court’s interest in controlling its docket and
the public’s interest in the efficient administration of justice without
unnecessary delay.
2007-NMSC-004, { 15 (internal quotation marks and citation omitted). In addition,
“(The djefendant must show that the denial of the continuance prejudiced him.” /d.
{ 16. “No more prejudice need be shown than that the [district] court’s order may
have made a potential avenue of defense unavailable to the defendant.” /d. (internal
quotation marks and citation omitted).
(293 In this case, Defendant obtained the witness testimony prior to trial and had
audio recordings available for impeachment. He argues that because he lacked
transcripts, he was unable to contradict vague testimony given by one of the State’s
witnesses, who Defendant claims had given more specific testimony in her interview
days earlier. Defendant does not argue why he was not able to use his recordings of
the interviews for that purpose at trial or that he that he attempted to do so. Nor does
Defendant present to us the specific testimony he claims would have been material
to his defense. Without any specific evidence on these matters, Defendant has failed
to meet his burden to establish that an avenue of defense was foreclosed to him, and

affirm the district court’s denial of Defendant’s motion to strike and oral motion for

continuance.

]
]

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CONCLUSION

30} For the foregoing reasons, we reverse Defendant’s conviction for child abuse
by endangerment and remand to the district court for retrial on that charge, and with
further instructions to vacate Defendant’s conviction for attempted aggravated

battery. We affirm the district court’s judgment in all other respects.

31} ITISSO ORDERED.

MEGAN P. DUFFY, Jndge

WE CONCUR:

Poplar Se.

ICHAEL D. BUSTAMANTE, Judge Pro Tempore

June 28, 2019- State of New Mexico v. Leonard Calvillo, No. A-1-CA-35233

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