February 5, 2019- State of New Mexico v. Jonathan D. Owens, No. A-1-CA-35127

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-35127
5 JONATHAN D. OWENS,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
8 J.C. Robinson, District Judge
9 Hector H. Balderas, Attorney General
10 Maris V eidemanis, Assistant Attorney General
11 	Santa Fe, NM
12 	for Appellee
13 	L. Helen Bennett, P.C.
14 Linda Helen Bennett
15 	Albuquerque, NM
16 	for Appellant
17
18 	VANZI, Judge.
MEMORANDUM OPINION
19 	{I} 	Jonathan D. Owens (Defendant) appeals his convictions for two counts of
20 	attempting to commit extortion, two counts of aggravated assault with a deadly
21 	weapon, and the firearm enhancements imposed on each of the aggravated assault
22 	counts. This Court's second calendar notice proposed to reverse, in part, and affirm,
23 	in part. The State and Defendant both filed a memorandum in opposition to this
Court of Appeals of New Mexico
Filed 2/5/2019 9:31 AM
Mark Reynolds

1 Court's proposed disposition. Not persuaded by either, we issued a memorandum
2 opinion affirming the sufficiency of evidence to support Defendant' s convictions but
3 reversing each of the firearm enhancements. See State v. Owens, No. 35,127, mem.
4 op. (N.M. Ct. App. Mar. 7, 2017) (non-precedential). We relied on State v. Branch,
5 2016-NMCA-071, 387 P.3d 250, opinion withdrawn and superseded, 2018-NMCA-
6 	031 , 417 P.3d 1141 , to hold that the firearm enhancement of Defendant' s sentence
7 violated double jeopardy. See Owens, No. 35 ,127, mem. op., 2. Our Supreme Court
8 granted a writ of certiorari on April 14, 2017. Order at 1, State v. Owens, No. S-1-
9 SC-36335 (April 	14, 2017). On December 	18 , 2017-after quashing a writ of
10 certiorari in Branch and remanding to this Court for consideration of our Supreme
11 	Court' s opinion in State v. Baroz, 2017-NMSC-030, 404 P.3d 769, which decided
12 	issues related to whether firearm enhancements on sentences for aggravated assault
13 	with a deadly weapon violated double jeopardy-the Supreme Court remanded this
14 case to our Court for consideration of the same. Order at 1, Owens, No. S-l-SC-
15 	36335 (Dec. 18 , 2017). On remand, we withdraw the memorandum opinion issued
16 	on March 7, 2017, and substitute this opinion in its stead.
17 	{2} 	Defendant argues that adding the firearm enhancements to his aggravated
18 	assault with a deadly weapon sentences violates double jeopardy because the use of
19 	a firearm was an element of the crime of aggravated assault with a deadly weapon.
20 	[Defendant MIO 1-2] However, our Supreme Court recently rejected this same
2

1 argument in Baroz. 	In Baroz, 	the defendant was 	convicted 	of two 	counts 	of
2 aggravated assault with a deadly weapon and sentenced to a term of eighteen months,
3 followed by one year of parole, for each conviction. 2017-NMSC-030, ~ 20. The
4 district court enhanced Defendant's sentences on these counts by one year each
5 pursuant to NMSA 1978, § 31-18-16(A) (1993 ), the firearm enhancement statute.
6 Baroz, 	2017-NMSC-030, 	~ 	20. 	Our 	Supreme 	Court 	rejected 	the 	defendant's
7 contention that the firearm enhancement violates double jeopardy because use of a
8 firearm is an element of his charges for aggravated assault with a deadly weapon. Id.
9 The 	Court concluded that the 	Legislature 	intended to 	authorize 	an 	enhanced
10 punishment when a person uses a firearm in the commission of aggravated assault,
11 	and thus, "[t]he sentence enhancement does not run afoul of double jeopardy." Id.
12 ~ 27.
13 	{3} 	Given the Supreme Court's holding in Baroz, we conclude that the firearm
14 enhancements in this case do not violate double jeopardy. We withdraw our previous
15 	holding 	vacating 	the 	enhancements 	and 	instead 	affirm 	the 	district 	court's
16 	enhancements of Defendant's two sentences for aggravated assault with a deadly
17 	weapon. The rest of our holdings in our previously issued memorandum opinion, as
18 	reiterated below, remain unchanged.
19 	{4} 	This Court's second calendar notice continued to propose affirmance on the
20 	sufficiency of evidence to support Defendant's convictions. [CN 2, 3] Defendant's
3

1 second memorandum in opposition repeats the same argument that the evidence
2 presented at trial did not exclude all reasonable doubt. [Defendant MIO 3] See State
3 v. Mondragon , 1988-NMCA-027, 110 , 107 N.M. 421 , 759 P.2d 1003 (stating that a
4 party responding to a summary calendar notice must come forward and specifically
5 point out errors of law and fact, and the repetition of earlier arguments does not
6 fulfill this requirement), superseded by statute on other grounds as stated in State v.
7 Harris, 2013-NMCA-031 1 3, 297 P.3d 374. We suggest that while Defendant' s
8 testimony to the contrary, if believed by the jury, could have cast doubt on the
9 veracity of the State's witnesses, it was the jury' s duty to weigh the credibility of the
10 witnesses and this Court does not reweigh the evidence. See State v. Salas, 1999-
11 	NMCA-099, 1 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-
12 	finder to resolve any conflict in the testimony of the witnesses and to determine
13 	where the weight and credibility lie). Based on the evidence, and "indulging all
14 	reasonable inferences and resolving all conflicts in the evidence in favor of the
15 	verdict[,]" we conclude that the evidence presented at trial was sufficient to exclude
16 	all reasonable doubt and supported Defendant's convictions. State v. Cunningham,
17 	2000-NMSC-009, 126 , 128 N.M. 711 , 998 P.2d 176; see also State v. Rojo, 1999-
18 	NMSC-001 , 1 19 , 126 N.M. 438, 971 P.2d 829 (stating that in determining the
19 	sufficiency of evidence, we disregard all evidence and inferences that support a
20 different result).
4

1 {5} 	This 	Court's 	second 	calendar notice 	continued to 	propose that exigent
2 circumstances were established based on the evidence relied upon in the first
3 calendar 	notice 	and 	Defendant's 	failure 	to 	dispute 	those 	facts. 	[CN2 	4-5]
4 Specifically, we proposed to conclude that Defendant's warrantless arrest was
5 lawfully based on both probable cause and exigent circumstances, where there was
6 evidence that the deputy received a call informing her that Defendant was pointing
7 a gun at and trying to kill two government officials on his property. [CNl 	6]
8 Defendant repeats the argument but does not otherwise point to any error in fact or
9 law to persuade us that our legal conclusion is erroneous. [Defendant MIO 4] See
10 Mondragon, 1988-NMCA-027,, 10.
11 	{6} 	Next, Defendant continues to argue pursuant to State v. Franklin, 	1967-
12 NMSC-151,, 9, 78 N.M. 127,428 P.2d 982, and State v. Boyer, 1985-NMCA-029,
13 	, 	24, 103 N.M. 655, 712 P.2d 1, that his numerous motions, meritorious on their
14 	face, should not have been summarily dismissed without a hearing, and that his
15 	commitment prior to 	trial 	violated NMSA 	1978, 	Section 3 l-9-1.5(A) 	(1999),
16 	because no evidentiary hearing was conducted to establish by clear and convincing
17 	evidence that he committed the crimes for which he was accused. [Defendant MIO
18 	6] We adhere to our conclusion that it was within the judge's discretion to rule on
19 the motions without a hearing, given that the judge either expressly indicated no
20 hearing was necessary, as there were no facts requiring further factual development
5

1 [3 RP 582, 643, 663, 689, 691], or made findings analyzing the parties' arguments.
2 	[3 RP 582-92; 643-44; 663-64] See State v. Guerro, 1999-NMCA-026, 11 26-28,
3 	126 N.M. 699, 974 P.2d 669 (recognizing that the district court's refusal to hold an
4 	evidentiary hearing as being within the judge's discretion particularly where claims
5 are based on the judge ' s personal observation and knowledge of the case, where the
6 party fails to state the grounds for relief, or the record contradicts the assertions
7 made). We note Defendant acknowledges that because he is no longer in custody,
8 there is no remedy for this due process claim. [Defendant MIO 6] Because Defendant
9 points to no error in fact or law, we affirm. See Mondragon, 1988-NMCA-027, ,-r 10.
10 	{7} 	For all of these reasons, and those stated in this Court' s first and second
11 	calendar notices, we affirm.
12 	{8}
13
14
IT IS SO ORDERED.
15 	WE CONCUR:
17 	J. MILES HANISEE, Judge
6