June 24, 2019- State of New Mexico v. Nolan Archuleta, No. A-1-CA-37487

OCR transcription for search; preserved printed pages are authoritative

Court of Appeals of New Mexico
Filed 6/24/2019 8:28 AM

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

ark Reynolds

2) STATE OF NEW MEXICO,

3 , Plaintiff-Appellee,

Alv. No. Ac1-CA-37487
5 NOLAN ARCHULETA,

6 Defendant-A ppellant.

7} APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8] Karen L. Townsend, District Judge

9|| Hector H. Balderas, Attorney General
10]|Santa Fe, NM

11] for Appellee
12|Bennett J. Baur, Chief Public Defender

13||Kathleen T. Baldridge, Assistant Appellate Defender
14} Santa Fe, NM

15 | for Appellant

16 MEMORANDUM OPINION

17| VANZI, Judge.

18]43 Defendant appeals from his convictions for aggravated burglary (based upon
19]\a battery) and larceny. [RP 124] In our notice of proposed disposition, we proposed

20]/to summarily affirm. [CN 1] Defendant filed a memorandum in opposition to this

21}Court’s notice of proposed disposition. We have given due consideration to the

1 memorandum in opposition, and, remaining unpersuaded, we affirm Defendant's
2 convictions.
3 {2} 	In his memorandum in opposition, Defendant continues to argue that there was
4 insufficient evidence to support his conviction for aggravated burglary. [MIO 4]
5 Defendant continues to challenge whether sufficient evidence was presented that he
6 committed aggravated burglary based upon a battery, where there was no evidence
7 that the battery occurred while Defendant was inside or entering or leaving the trailer
8 because the altercation took place at Defendant's car, after the burglary was complete.
9 	[MIO 4] In our calendar notice we proposed that there was sufficient evidence to
10 convict Defendant of aggravated burglary, even though the altercation took place
11 	outside in the yard, not as Defendant was inside, entering, or leaving the structure in
12 question. [CN2-3, 5] WeconsideredStatev. Romero, 1994-NMCA-150, ,r,r 6-19, 119
13 	N.M. 195, 889 P.2d 230, where this Court applied a broad construction of"leaving"
14 in the context of the aggravated burglary statute, NMSA 1978, § 3 0-6-14 ( 1963,
15 	amended 1995); and we proposed to reject Defendant's narrow interpretation of the
16 battery elements of his conviction. [CN 5]
17 	{3} 	In his memorandum in opposition, Defendant asks us to reconsider our reliance
18 	on Romero. [MIO 5] Defendant also argues that Romero does not support a finding
2

1 that he committed a battery while leaving the trailer he burglarized. [MIO 5]
2 Defendant asserts that he had already "committed burglary when his brother . . .
3 confronted him about the theft. [Defendant] was not leaving the trailer when [the
4 victim] confronted him about the burglary that he had just witnessed." [MIO 6]
5 However, Defendant also notes that the victim "arrived on the premises and saw his
6 brother, [Defendant], taking items out of the trailer and placing them in hiscar[.]"
7 [MIO 1]
8 {4} 	We are disinclined to adopt Defendant's constrained reading of Romero.
9 Defendant's arguments too narrowly circumscribe the elements 	of aggravated
10 burglary, especially th~ 	definitions 	of "leaving" and "such place." Defendant
11 	acknowledges that the aggravated burglary statute is "aimed at protecting people from
12 physical injuries sustained during burglaries[.]" [MIO 6- 7 (citing State v. Swick,
13 	2012-NMSC-018, 279 P.3d 747)] Based on the foregoing, we hold that there was
14 sufficient evidence to support Defendant's conviction for aggravated burglary (based
15 	upon a battery).
16 	{5} 	As he did in his docketing statement, Defendant additionally argues in his
17 memorandum in opposition that there is insufficient evidence to support his larceny
18 	conviction because the evidence showed that although Defendant initially placed
3

1 items in his vehicle worth more than five hundred dollars, he only deprived the victim
2 	of two propane tanks worth forty dollars (and tools of an undetermined value),
3 because Defendant left the remainder of the items in the yard. [MIO 9] Defendant's
4 memorandum in opposition focuses on Defendant's intent, arguing now that the State
5 did not establish that Defendant intended to permanently deprive the victim of all the
6 items that he removed from the trailer because he left the items on the ground.
7 However, the jury was entitled to infer Defendant's intent from the facts and
8 cir~umstances of the case. State v. Roybal, 1960-NMSC-012, 16, 66 N.M. 416,349
9 P.2d 332 ("While intent is essential and must be established in larceny cases, it may
10 be inferred by the jury from the facts and circumstances established at the trial."); see
11 	also State ex rel. Huning v. Los Chavez Zoning Comm 'n, 1982-NMSC-024, 17, 97
12 N.M. 472, 641 P.2d 503 ("Circumstantial evidence of intent is sufficient ... if it can
13 	be said that it amounts to substantial evidence."). Further, we addressed this argument
14 in our calendar notice, noting that larceny "does not require that property be moved
15 	a far distance from where it was kept or placed by the owner, only that it was moved
16 from its owner-placed location with the intent to permanently. deprive." [CN 6] See
17 State v. Clark, 2000-NMCA-052, 1 13, 129 N.M. 194, 3 P.3d 689 (describing the
18 	common-law asportation requirement as not a literal "carrying away," but moving,
4

1 by available means, any number of things (internal quotation marks and citation
2 omitted)); see also UJI 14-1601 NMRA; UJI 14-1603 NMRA.
3 {6} 	Defendant has not asserted any fact, law, or argument that persuades us that our
4 analysis 	of the 	elements 	of larceny was erroneous. 	See Hennessy 	v. 	Duryea,
5 	1998-NMCA-036,, 24, 124 N.M. 754, 955 P.2d 683 ("Our courts have repeatedly
6 held that, in summary calendar cases, the burden is on the party opposing the
7 proposed disposition to clearly point out errors in fact or law."); State v. Mondragon,
8 	1988-NMCA-027,, 10, 107N.M. 421, 759P.2d 1003 (statingthatapartyresponding
9 to a summary calendar notice must come forward and specifically point out errors of
10 	law and fact, and the repetition of earlier arguments does not fulfill this requirement),
11 	superseded 	by 	statute 	on 	other 	grounds 	as 	stated 	in 	State 	v. 	Harris,
12 2013-NMCA-031,, 3,297 P.3d 374.
13 	{7} 	Accordingly, for the reasons stated in our notice of proposed disposition and
14 herein, we affirm Defendant's convictions.
15 	{8}
16
17
IT IS SO ORDERED.
5

1
WE CONCUR:
2
Kristina Bogardus
3
KRISTINA BOGARDUS, Judge
4 Jacqueline R. Medina 5 JACQUELINE R. MEDINA, Judge
6