February 14, 2019- State of New Mexico v. Duc Lauynh, No. A-1-CA-37489

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO Filed 2/14/2019 8:21 AM
ys
Plaintiff-Appellee,
Mark Reynolds
Vv. NO. A-1-CA-37489
DUC LAUYNH,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Christina P. Argyres, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
for Appellee

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
VANZI, Judge.
{B Defendant appeals from the district court’s order revoking his probation. This
Court issued a notice of proposed disposition in which we proposed to affirm.

Defendant has filed a memorandum in opposition. After due consideration, we remain

unpersuaded. We therefore affirm.

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{23 | Wepreviously set forth the relevant background information and principles of
law in the notice of proposed summary disposition. We will not reiterate at length
here. Instead, we will focus on the content of the memorandum in opposition.

3} In his memorandum in opposition to our notice of proposed disposition,
Defendant does not point out specific errors in fact or law. See Hennessy v. Duryea,
1998-NMCA-036, § 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly
held that, in summary calendar cases, the burden is on the party opposing the
proposed disposition to clearly point out errors in fact or law.”). Nevertheless,
Defendant maintains that there was insufficient evidence to establish that he willfully
violated his probation. [MIO 1, 4-6] Defendant claims that the only evidence in
support of the allegations that he committed the crimes of aggravated assault and
being a felon in possession of a firearm was the testimony of Michael Vargas. [MIO
5-6] Defendant acknowledges that Vargas testified that Defendant pulled a gun on
him after a verbal dispute over a parking space and there was video evidence that may
have corroborated Vargas’s testimony. [MIO 6; see also CN 3] Additionally,
Defendant recognizes that officers found him and a firearm in an apartment. [MIO 6;
see also CN 3] However, he asserts that there was no evidence that the firearm
recovered was the firearm at issue, and he asserts he did not live at the apartment

where he and the firearm were found. [MIO 6; see also DS 4] He further maintains

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that he told the officer that he had a cell phone in his hand while he was arguing with
Vargas, and a cell phone—not a firearm—was found on his person. [MIO 6; see also
CN 3]

{4 As discussed in our notice of proposed disposition, we will not reweigh the
evidence. [CN 4] See State v. Salas, 1999-NMCA-099, 4 13, 127 N.M. 686, 986 P.2d
482 (recognizing that it is for the fact-finder to resolve any conflict in the testimony
of the witnesses and to determine where the weight and credibility lie). Therefore, for
the reasons discussed above and in this Court’s notice of proposed disposition, we
conclude that the district court did not abuse its discretion in finding that Defendant
willfully violated his probation.

{5} Accordingly, we affirm the revocation of Defendant’s probation.

{6} IT ISSO ORDERED.

Luh BO

LINDA M. VANZI, Judge

WE CONCUR:

— L. tia Judge

his tox Goya tes

KRISTINA BOGARDUS, Judge