August 10, 2020- State of New Mexico v. Ernesto Benavidez, No. A-1-CA-38076

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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-38076
5 ERNESTO BENAVIDEZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Daniel J. Gallegos, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Gregory B. Dawkins, Associate Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 HANISEE, Chief Judge.
18 {1} Defendant appeals from his conviction, after a jury trial, of one count of
19 aggravated stalking (violation of protection order), contrary to NMSA 1978, Section
20 30-3A-3.1 (1997), and five counts of violation of an order of protection, contrary to
Court of Appeals of New Mexico
Filed 8/10/2020 8:20 AM

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1 NMSA 1978, Section 40-13-6 (2013). In this Court’s notice of proposed disposition,
2 we proposed to summarily affirm. Defendant filed a memorandum in opposition and
3 motion to amend, which we have duly considered. Remaining unpersuaded, we
4 affirm.
5 {2} In his memorandum in opposition, Defendant abandons all but three issues, see
6 State v. Salenas, 1991-NMCA-056, ¶ 2, 112 N.M. 208, 814 P.2d 136 (providing that
7 where a party has not responded to this Court’s proposed disposition of an issue, that
8 issue is deemed abandoned): (1) whether there was sufficient evidence to convict
9 Defendant of aggravated stalking [MIO 5], (2) whether “[Defendant’s] convictions
10 for both aggravated stalking and violation of an order of protection violated his right
11 to be free from double jeopardy” [MIO 8], and (3) whether the district court erred by
12 preventing Defendant from calling witnesses “to present ‘defense of another.’ ” [MIO
13 13] Defendant moves to amend his docketing statement as to the second issue, to
14 make his argument one of double description rather than unit of prosecution. [MIO
15 1-2] We address this issue last.
16 Sufficiency
17 {3} In his memorandum in opposition, Defendant invites us to look to a statute and
18 uniform jury instruction for what the State was required to prove at trial. [MIO 6] We
19 reiterate that “[t]he jury instructions become the law of the case against which the
20 sufficiency of the evidence is to be measured.” State v. Holt, 2016-NMSC-011, ¶ 20,

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1 368 P.3d 409 (alteration, internal quotation marks, and citation omitted). Therefore,
2 in evaluating sufficiency of the evidence, we look to the jury instructions as given.
3 See id.; State v. Arrendondo, 2012-NMSC-013, ¶¶ 19-20, 278 P.3d 517. Because the
4 term “reasonable apprehension” does not appear in the jury instructions at issue,
5 Defendant’s exploration of the meaning of that term is misplaced. [MIO 6-7]
6 {4} We address this issue to the extent Defendant argues there was insufficient
7 evidence that Defendant “maliciously pursued a pattern of conduct that would cause
8 a reasonable person to feel frightened, intimidated or threatened on more than one
9 occasion by harassing [Victim.]” [MIO 6-8; RP 145] Defendant points to evidence
10 suggesting that a reasonable person would not feel frightened, intimidated, or
11 threatened by Defendant’s conduct. [MIO 6-7] To the extent the evidence he cites
12 would support such a proposition, it nonetheless does not provide a basis for reversal.
13 See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary
14 evidence supporting acquittal does not provide a basis for reversal because the jury
15 is free to reject [a d]efendant’s version of the facts.”). Moreover, evidence that Victim
16 may not have read some or all of the letters [DS 6-7] is not relevant in determining
17 whether Defendant “pursued a pattern of conduct that would cause a reasonable
18 person to feel frightened, intimidated or threatened.” [RP 145 (Emphasis added.)] See
19 Holt, 2016-NMSC-011, ¶ 20.

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1 {5} Defendant also suggests the State did not prove the required intent for
2 aggravated stalking. [MIO 7-8] He writes, “[Defendant] may have exaggerated the
3 extent of [his and Victim’s] online relationship in his own mind, but that in itself does
4 not amount to an intent to place [Victim] in harm’s way. The tone of the letters does
5 not suggest that intent.” [MIO 7-8] We construe this as an argument that there was
6 insufficient evidence either that Defendant acted maliciously or that he “intended to
7 cause a reasonable person to fear for the person’s safety or the safety of a household
8 member” for purposes of stalking. [RP 145]
9 {6} As Defendant acknowledges in his memorandum in opposition, the letters
10 contained bible tracts; a reference to “the Victoria Marten case, a child whose mother
11 solicited men to have sex with her daughter” and who “was later found dismembered
12 in a burning blanket”; “documents regarding his acquittal on a criminal sexual
13 penetration charge, a drawing of roses, and ‘love eternally’ ”; and “songs or poems[.]”
14 [MIO 4-5] From these letters, the jury was free to infer the requisite intent. See State
15 v. Flores, 2010-NMSC-002, ¶ 19, 147 N.M. 542, 226 P.3d 641 (stating that “intent
16 is subjective and is almost always inferred from other facts in the case” (alteration,
17 omission, internal quotation marks, and citation omitted)); State v. Michael S., 1995-
18 NMCA-112, ¶ 7, 120 N.M. 617, 904 P.2d 595; see also Rojo, 1999-NMSC-001, ¶ 19
19 (stating that the jury is free to reject a defendant’s version of the facts). Therefore, we
20 conclude that sufficient evidence supported Defendant’s conviction. See State v.

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1 Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156 (“This court does not
2 weigh the evidence and may not substitute its judgment for that of the fact[-]finder
3 so long as there is sufficient evidence to support the verdict.” (internal quotation
4 marks and citation omitted)).
5 Defense of Others
6 {7} In our proposed disposition, we proposed to reject Defendant’s contention that
7 he should have been allowed to present evidence that Victim’s family was abusing
8 her or giving her drugs. [CN 12] We proposed to affirm because Defendant had not
9 “explained what evidence he sought to admit regarding his concern over ‘[V]ictim’s
10 exposure to drugs and abuse;’ . . . on what grounds the district court excluded the
11 evidence; or how Defendant was in fact prejudiced by the omission of the
12 evidence[.]” [CN 11] See State v. Chamberlain, 1989-NMCA-082, ¶ 11, 109 N.M.
13 173, 783 P.2d 483 (stating that this Court could not grant relief where the defendant
14 failed “to provide us with a summary of all the facts material to consideration of this
15 issue, as required by [Rule 12-208(D)(3) NMRA.]”); see also Corona v. Corona,
16 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty to review an
17 argument that is not adequately developed.”).
18 {8} In Defendant’s memorandum in opposition, Defendant does not dispute our
19 proposed conclusions that this evidence would be relevant only to Defendant’s
20 aggravated stalking charge or that we review this issue for abuse of discretion. [CN

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1 9] Rather, Defendant points out that he “could have introduced that evidence on
2 cross-examination of [Victim].” [MIO 13] He suggests that his lack of opportunity
3 to do so prejudiced him because “[t]his evidence would have negated a finding that
4 he acted with an intent to place [Victim] in imminent fear of harm because his theory
5 was that the letters were a step in freeing her from her family.” [MIO 13-14]
6 However, Defendant fails to explain the grounds on which the district court omitted
7 this evidence or what argument he raised with the district court in his attempt to
8 introduce the evidence, instead only repeating that the district court “refused to
9 allow” it. [MIO 14, 15] We remain without sufficient facts to further address
10 Defendant’s argument that the district court abused its discretion when it “refused to
11 allow” the testimony at issue. See Chamberlain, 1989-NMCA-082, ¶ 11.
12 {9} Moreover, even if the district court did abuse its discretion, we would only
13 reverse if the error were not harmless. “Error in the exclusion of evidence in a
14 criminal trial is prejudicial and not harmless if there is a reasonable possibility that
15 the excluded evidence might have affected the jury’s verdict.” State v. Balderama,
16 2004-NMSC-008, ¶ 41, 135 N.M. 329, 88 P.3d 845. “In the absence of prejudice,
17 there is no reversible error.” State v. Fernandez, 1994-NMCA-056, ¶ 13, 117 N.M.
18 673, 875 P.2d 1104.
19 [I]n reaching a judgment as to the likely effect of the error, courts should
20 evaluate all of the circumstances surrounding the error. This requires an
21 examination of the error itself, which depending upon the facts of the

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1 particular case could include an examination of the source of the error
2 and the emphasis placed upon the error.
3 State v. Tollardo, 2012-NMSC-008, ¶ 43, 275 P.3d 110. The State’s evidence of
4 Defendant’s guilt may be relevant or even necessary to determine the role the error
5 may have played and its importance, although it should not be mistaken for the
6 former determinative test. See id.
7 {10} Defendant’s failure to provide details regarding the alleged error makes it
8 impossible to evaluate “all of the circumstances surrounding” it. See id. Nor has
9 Defendant provided enough information to examine the error itself, the source of the
10 error, or the emphasis placed on the error. See id. As we noted in our notice of
11 proposed disposition, the content of the letter, sent after an order of protection was
12 entered against Defendant, is a strong indication that Defendant did not somehow
13 intend the letter to defend or protect Victim from her family. See id. [MIO 14] Thus,
14 Defendant’s memorandum in opposition fails to convince us that there was a
15 reasonable possibility that evidence that Defendant believed Victim was “the victim
16 of abuse or endangerment at the hand of her family members” [MIO 13] might have
17 affected the jury’s verdict. See Corona, 2014-NMCA-071, ¶ 28. We therefore affirm
18 the district court’s ruling in this regard. State v. Aragon, 1999-NMCA-060, ¶ 10, 127
19 N.M. 393, 981 P.2d 1211 (noting that there is a presumption of correctness in the

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1 rulings or decisions of the district court, and the party claiming error bears the burden
2 of showing such error); Chamberlain, 1989-NMCA-082, ¶ 11.
3 Double Jeopardy
4 {11} Defendant argues that his convictions for violation of an order of protection
5 alongside his conviction for aggravated stalking violate his right to be free from
6 double jeopardy and that we should therefore vacate his convictions for violations of
7 orders of protection. [MIO 8, 13] Although Defendant raised a double jeopardy
8 argument in his docketing statement, he has changed the nature of his argument in his
9 memorandum in opposition and filed a motion to amend to raise the “double-
10 description” issue, now arguing that he was “charged with more than one statutory
11 violation for the same conduct.” [MIO 1, 8] See State v. DeGraff, 2006-NMSC-011,
12 ¶ 25, 139 N.M. 211, 131 P.3d 61.
13 {12} For this Court to grant a motion to amend the docketing statement, the movant
14 must meet certain criteria that establishes good cause for our allowance of such
15 amendment. See State v. Moore, 1989-NMCA-073, ¶¶ 41-42, 109 N.M. 119, 782 P.2d
16 91, superceded by rule on other grounds as recognized in State v. Salgado, 1991-
17 NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730; State v. Rael, 1983-NMCA-081,
18 ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309. The essential requirements to show good
19 cause for our allowance of an amendment to an appellant’s docketing statement are
20 that (1) the motion be timely, (2) the new issue sought to be raised was either (a)

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1 properly preserved below or (b) allowed to be raised for the first time on appeal, and
2 (3) the issues raised are viable. Moore, 1989-NMCA-073, ¶ 42. As we explain, the
3 issue Defendant raises is not viable.
4 {13} We generally apply a de novo standard of review to the constitutional question
5 of whether there has been a double jeopardy violation. State v. Andazola, 2003-
6 NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77. However, when factual issues are
7 intertwined with the double jeopardy analysis, the district court’s fact determinations
8 are subject to a deferential substantial evidence standard of review. State v.
9 Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737.
10 {14} For “double description” cases, we apply the two-part test set forth in State v.
11 Swafford, 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 P.2d 1223: (1) whether the conduct
12 is unitary and (2) if so, whether the Legislature intended to punish the offenses
13 separately. See State v. Silvas, 2015-NMSC-006, ¶ 9, 343 P.3d 616. “Only if the first
14 part of the test is answered in the affirmative, and the second in the negative, will the
15 double jeopardy clause prohibit multiple punishment in the same trial.” Id. (internal
16 quotation marks and citation omitted).
17 {15} “When determining whether Defendant’s conduct was unitary, we consider
18 whether Defendant’s acts are separated by sufficient indicia of distinctness.” See
19 DeGraff, 2006-NMSC-011, ¶ 27 (internal quotation marks and citation omitted).
20 “Conduct is unitary when not sufficiently separated by time or place, and the object

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1 and result or quality and nature of the acts cannot be distinguished.” Silvas, 2015-
2 NMSC-006, ¶ 10.
3 {16} Defendant mistakenly assumes that the aggravating element for his conviction
4 for aggravated stalking relies on one or all of the same letters as his convictions for
5 violation of a restraining order. [MIO 11] He states that there were only “five letters
6 that gave rise to the instant charges.” [MIO 3] In fact, there were six letters—in
7 listing the letters in his memorandum in opposition, Defendant seems to not recognize
8 that two of the charges for violation of an order of protection were based on two
9 different letters, both dated September 11, 2017. [RP 2 ¶¶ 4-5 (indictment); 148-49
10 (jury instructions indicating that counts three and four were for violation of order of
11 protection for letters sent on September 11, 2017); 156-157 (jury verdicts of guilty
12 for counts three and four)].
13 {17} Defendant was only convicted of five counts of violation of an order of
14 protection. [RP 207-08] As we noted in our notice of proposed disposition, it appears
15 the district court granted the State’s request to merge the charge for violation of an
16 order of protection that was based on the September 18, 2017 letter, with the
17 aggravating stalking charge. [RP 155 (Guilty verdict for the fourth letter (from
18 September 18); RP 186-87 (state’s sentencing memorandum asking that this verdict
19 be merged with the aggravated stalking charge); RP 207-08 (judgment and sentence
20 with conviction for aggravated stalking but not for a September 18 order-of-

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1 protection violation)]. The September 18 letter was a week removed from the letter
2 dated next closest in time (September 11, 2017). Therefore, Defendant’s conduct
3 giving rise to his aggravated stalking conviction was not unitary with the conduct
4 giving rise to his other convictions. See Swafford, 1991-NMSC-043, ¶ 28 (“If two
5 events are sufficiently separated by either time or space . . . then it is a fairly simple
6 task to distinguish the acts.”). As this disposes of the double-jeopardy issue, we need
7 not reach the second part of the Swafford test. See Silvas, 2015-NMSC-006, ¶ 9. As
8 such, we consider the issue Defendant seeks to add by his motion to amend non-
9 viable and deny the motion. See Moore, 1989-NMCA-073, ¶¶ 42-43.
10 {18} For the reasons set forth in our notice of proposed disposition and herein, we
11 affirm.
12 {19} IT IS SO ORDERED.
13 __________________________________
14 J. MILES HANISEE, Chief Judge
15 WE CONCUR:
16 _________________________________
17 JULIE J. VARGAS, Judge
18 _________________________________
19 BRIANA H. ZAMORA, Judge