May 28, 2019- State of New Mexico v. Genovevo Gallegos Jr., No. A-1-CA-37675

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-37675
5 	GENOVEVO GALLEGOS JR.,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
8 Douglas R. Driggers, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur , Chief Public Defender
13 	Mary Barket, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	HANISEE, Judge.
18 	{t} 	Defendant appeals from his conviction for possession of methamphetamine.
19 This Court ' s notice of proposed disposition proposed summary affirmance. Defendant
20 	filed a memorandum in opposition to the proposed disposition. Unpersuaded by
21 	Defendant's arguments, we affirm.
Court of Appeals of New Mexico
Filed 5/28/2019 11:30 AM

1 {2} 	Defendant continues to argue that there was insufficient evidence to support
2 his conviction 	for possession 	of methamphetamine because the evidence was
3 insufficient to prove that he knew or believed the substance found in his pocket was
4 methamphetamine, given that there were other people in the car from whom he might
5 have received the substance. Because we disregard all inferences that support a
6 different result, we remain unpersuaded by Defendant's argument. See State v. Rojo,
7 	1999-NMSC-001 , if 19, 126 N.M. 438,971 P.2d 829.
8 	{3} 	Defendant also continues to argue that the district court erred in allowing
9 testimony that the back-seat passenger threw something out of the window during the
10 	initiation of the stop. [DS 6, MIO 6- 7] Our calendar notice proposed to affirm on the
11 	presumption of correctness because the docketing statement failed to indicate for
12 	what purpose the State sought to admit the evidence, defense counsel's objections and
13 	arguments in response, or the basis for the district court's ruling. [CN 4] Defendant
14 reasserts his argument, indicating that trial counsel could not recall the State' s
15 	arguments or the district court's rationale. [MIO 4-5] We will not reverse the district
16 court's admission of evidence absent a clear abuse of discretion. 	See State v.
17 Sarracino, 1998-NMSC-022, ,r 20, 125 N.M. 511, 964 P .2d 72. Because Defendant
18 	has not met his burden of demonstrating such an abuse, we affirm. See State v.
2

1 Aragon, 1999-NMCA-060, ~ 10, 127 N.M. 393, 981 P.2d 1211 (stating the burden
2 is on the appellant to demonstrate trial court error).
3 	{4} 	Defendant further continues to argue that the district court abused its discretion
4 by not granting a continuance. Our calendar notice indicated that there are numerous
5 factors to consider in determining whether to grant a continuance, and the docketing
6 statement failed to provide the information necessary for our review. See State v.
7 	Torres, 1999-NMSC-010, ~ 10, 127 N.M. 20,976 P.2d 20; see also Aragon, 1999-
8 NMCA-060, ~ 10. We therefore proposed to conclude that, even assuming it was
9 error, it was harmless. See State v. Serna, 2013-NMSC-033, ~ 22, 305 P.3d 936
10 ( stating that evidentiary error that does not implicate confrontation rights is reviewed
11 	for non-constitutional harmless error).
12 	{5} 	In response, Defendant asserts that trial counsel could not recall if the district
13 	court specifically addressed the factors, but the district court judge did indicate a
14 general concern about the age of the case-just under two years-and a desire to
15 	avoid any further delay. [MIO 1O] Defendant also states that it was unclear whether
16 there was any discussion regarding the existence of prejudice to the parties caused by
17 	further delay. [Id.] Absent the specific facts presented to the district court in support
18 	of, and in opposition to, the motion for a continuance, we will not determine there
19 was an abuse of discretion. See State v. Salazar, 2007-NMSC-004, ~ 15, 141 N.M.
3

1 148, 152 P.3d 135 ("A significant part of that framework is a focus on the specific
2 facts presented to the trial court in support of or in opposition to the motion.").
3 Insofar as Defendant asserts he was prejudiced, we are unpersuaded that the mere
4 possibility the parties could have renegotiated a plea, without more-such as a
5 showing that the parties had actually been in negotiations and were actively moving
6 toward a plea agreement-is sufficient to establish prejudice. See In re Ernesto M ,
7 Jr., 1996-NMCA-039,110, 121 N.M.562, 915P.2d318("Anassertionofprejudice
8 is not a showing of prejudice."). We also note that newly appointed defense counsel,
9 as of October 13, 2017, had a sufficient amount time to familiarize himself with the
10 record to discover the existence of a second prior conviction, already noted in the
11 	record due to the previous motion to continue, despite the fact that the formal
12 	supplemental information was not filed until the day before the May 17, 2018 trial.
13 	[MIO 3-4] We determine that Defendant has not met his burden in this regard and
14 affirm. See Salazar, 2007-NMSC-004, 110 ("The grant or denial of a continuance is
15 	within the sound discretion of the trial court, and the burden of establishing abuse of
16 	discretion rests with the defendant.").
17 	{6} 	For all of these reasons, and those stated in the notice of proposed disposition,
18 	we affirm.
4

1 {7} 	IT IS SO ORDERED.
2
3 	J. MILES HANISEE, Judge
4 WE CONCUR:
6 M. MONICA ZAMO
~
Chief Judge
ELINE R. MEDINA, Judge
5