January 21, 2020- State of New Mexico v. Charlie Montoya, No. A-1-CA-36327

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36327	4
CHARLIE MONTOYA,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Benjamin Chavez, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Jane A. Bernstein, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
William O’Connell, Assistant Appellate Defender	15
Santa Fe, NM	16
for Appellant	17
MEMORANDUM OPINION	18
B. ZAMORA, Judge.	19
{1} 	Defendant Charlie Montoya appeals from his convictions for second-degree	20
murder, aggravated assault (deadly weapon), and conspiracy to commit assault with	21
intent to commit a violent felony. On appeal, Defendant claims (1) the district court	22
erred by failing to grant a continuance or declare a mistrial based on the need to	23
Court of Appeals of New Mexico
Filed 1/21/2020 11:13 AM

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secure a defense witness, and (2) the evidence was insufficient to support the	1
convictions. We affirm.	2
DISCUSSION	3
I. 	Availability of a Witness	4
{2} 	Defendant 	claims 	that 	the 	district 	court 	should 	have 	either 	granted 	a	5
continuance or declared a mistrial after a defense witness failed to appear by the end	6
of trial. We review the denial of such motions for an abuse of discretion. See State	7
v. McDonald, 1998-NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752 (stating that the	8
district court’s ruling on a motion for a mistrial is addressed to the sound discretion	9
of the district court and will not be disturbed absent a showing of abuse of	10
discretion); see also State v. Sanchez, 1995-NMSC-053, ¶ 17, 120 N.M. 247, 901	11
P.2d 178 (“The grant or denial of a motion for a continuance rests within the sound	12
discretion of the [district] court, and the burden of establishing an abuse of discretion	13
rests with the defendant.”).	14
{3} 	In this case, the absent witness, Natalie Oliver, had discovered the body of	15
Ray Gurule (Victim) in her backyard, lying between an exterior wall of the house	16
and a cinder-block fence. The State’s theory was that Victim had been fatally shot	17
during a confrontation with Defendant near Oliver’s home four days before the body	18
was discovered, but before Victim died he fled and ended up in Oliver’s backyard.	19

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{4} 	Oliver was listed as a witness for both sides. At the June 13, 2016, docket	1
call—approximately a month before the start of trial—defense counsel indicated that	2
he was having trouble with Oliver, who was under subpoena but had stated that she	3
would not be coming to trial. Defense counsel informed the district court that Oliver	4
had done yard work the day before the body was found, suggesting the body was not	5
in the yard at that time. Defense counsel indicated that he could pursue the matter	6
further to see if she would comply with the subpoena; the State indicated that it	7
would not oppose a motion for a material witness warrant in the event that Oliver	8
remained intransigent. The court then stated that the matter was not yet ripe, and the	9
State noted that defense counsel could request a material witness warrant if Oliver	10
did not cooperate by ten days before the trial.	11
{5} 	The jury trial began on July 11, 2016. On July 18, 2016, defense counsel	12
informed the court that Oliver still had not appeared. The court authorized a material	13
witness warrant, which defense counsel failed to file until the following day, which	14
was the final day of trial testimony. On the day the warrant was filed, the district	15
court was informed that a police officer believed that there was a technical glitch	16
with the warrant, so he did not produce Oliver. During a recess, the district court told	17
counsel to work on the matter. When testimony closed later that day, Oliver still had	18
not appeared, and Defendant moved for a mistrial. The district court denied the	19
motion.	20

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{6} 	In considering the denial of a motion for a mistrial, we initially consider	1
whether the district court should have granted a continuance. See State v. Messier,	2
1984-NMCA-085, ¶ 14, 101 N.M. 582, 686 P.2d 272 (stating that “[w]here a	3
reasonable continuance may resolve the problem, it should be undertaken in lieu of	4
granting a mistrial”). While “[t]he grant or denial of a motion for a continuance rests	5
within the sound discretion of the [district] court,” there are a number of factors	6
district courts should consider in evaluating such motions:	7
the length of the requested delay, the likelihood that a delay would	8
accomplish 	the 	movant’s 	objectives, 	the 	existence 	of 	previous	9
continuances in the same matter, the degree of inconvenience to the	10
parties and the court, the legitimacy of the motives in requesting the	11
delay, the fault of the movant in causing a need for the delay, and the	12
prejudice to the movant in denying the motion.	13
State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20 (internal quotation	14
marks and citation omitted). Because trial counsel requested a mistrial, and not a	15
continuance, the district court’s focus on the last two Torres factors and our	16
consideration of them is dispositive in this case.	17
{7} 	In determining whether a defendant suffered prejudice as a result of the district	18
court’s denial of a motion for a continuance, “[w]e do not ask whether the evidence	19
was critical but, instead, whether [the defendant] made a plausible showing of how	20
the witness’s testimony would have been both material and favorable to his defense.”	21
Id. ¶ 12 (alteration, internal quotation marks, and citation omitted). As noted,	22
Defendant sought Oliver’s testimony for the purpose of showing that the witness did	23

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not see Victim’s body when she did yardwork several days after the confrontation	1
involving Defendant, making it unlikely that the confrontation resulted in Victim’s	2
death. However, as the district court observed:	3
Her testimony would involve finding the body, residing at the property	4
and having cleaned, according to two offers of proof, the front yard of	5
the property on Thanksgiving Day, which was the day before the body	6
was discovered.	7
The body was in fact discovered, however, behind a six-foot cinder	8
block wall on the side of the house, not in the front yard, the side of the	9
house which is attached to the backyard. And the probative value of her	10
testimony is highly unknown at this time. She discovered the body; she	11
walked the police to it in the lapel video; and she had cleaned a different	12
yard on the same property the day before.	13
{8} 	The district court also noted that defense counsel did not request a material	14
witness warrant until “extremely late” in the process. In light of the lack of diligence	15
in securing Oliver’s attendance, and more importantly because of the speculative	16
favorability of her testimony, we conclude that the district court acted within its	17
discretion not to prolong the proceedings. See State v. Salazar, 2006-NMCA-066,	18
¶¶ 2-3, 27, 139 N.M. 603, 136 P.3d 1013 (holding that the defendant failed to	19
demonstrate prejudice from being denied a continuance to obtain an evaluation	20
because the prejudice was speculative). It follows that the district court did not abuse	21
its discretion in denying the more severe remedy of a mistrial.	22

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II. 	Sufficiency of the Evidence	1
{9} 	Defendant 	challenges 	the 	sufficiency 	of 	the 	evidence 	to 	support 	his	2
convictions. When assessing the sufficiency of the evidence, “we view the evidence	3
in the light most favorable to the guilty verdict, indulging all reasonable inferences	4
and resolving all conflicts in the evidence in favor of the verdict.” State v. Samora,	5
2016-NMSC-031, ¶ 34, 387 P.3d 230 (internal quotation marks and citation	6
omitted). We disregard all evidence and inferences that support a different result.	7
See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “We then	8
determine whether substantial evidence of either a direct or circumstantial nature	9
exists to support a verdict of guilt beyond a reasonable doubt with respect to every	10
element essential to a conviction.” State v. Garcia, 2016-NMSC-034, ¶ 15, 384 P.3d	11
1076 (internal quotation marks and citation omitted). “Substantial evidence is	12
relevant evidence that a reasonable mind might accept as adequate to support a	13
conclusion.” State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation	14
marks and citation omitted).	15
{10} 	Defendant’s 	brief-in-chief 	only 	challenges 	his 	second-degree 	murder	16
conviction. Therefore, we limit our discussion to that conviction. See State v.	17
Johnson, 2010-NMSC-016, ¶ 62, 148 N.M. 50, 229 P.3d 523 (concluding that the	18
defendant had abandoned issues “by failing to discuss them in his brief”); State v.	19
Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that we will	20

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“not review unclear or undeveloped arguments [that] require us to guess at what a	1
part[y’s] arguments might be”).	2
{11} 	In order to support Defendant’s conviction for second-degree murder, the	3
evidence had to show that Defendant killed Victim, that Defendant knew that his	4
acts created a strong possibility of death or great bodily harm, and that Defendant	5
did not act as a result of sufficient provocation. The jury was also instructed that	6
Defendant could be found guilty as an accessory.	7
{12} 	The 	verdict 	form 	returned 	by 	the 	jury 	did 	not 	specify 	whether 	its	8
determination of Defendant’s guilt was based on principal or accessory liability.	9
Because the verdict may be upheld where one of the theories for conviction is	10
supported by sufficient evidence, see State v. Bahney, 2012-NMCA-039, ¶ 26, 274	11
P.3d 134, we will address the evidence of second-degree murder under the	12
accomplice liability theory.	13
{13} 	A person may be “convicted of [a] crime as an accessory if he procures,	14
counsels, [or] aids or abets in its commission[,] although he did not directly commit	15
the crime.” NMSA 1978, § 30-1-13 (1972). “A person who aids or abets in the	16
commission of a crime is equally culpable” and faces “the same punishment as a	17
principal.” State v. Carrasco, 1997-NMSC-047, ¶ 6, 124 N.M. 64, 946 P.2d 1075.	18
The jury was instructed that Defendant may be found guilty of the substantive	19
offense as an accessory, if they find beyond a reasonable doubt that: (1) “[D]efendant	20

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intended that the crime be committed”; (2) “the crime was committed”; and (3)	1
“[D]efendant helped, encouraged, or caused the crime to be committed.” See UJI 14-	2
2822 NMRA. Under an accessory liability theory, “a jury must find a community of	3
purpose for each crime of the principal.” Carrasco, 1997-NMSC-047, ¶ 9. As such,	4
“a jury must find that a defendant intended that the acts necessary for each crime be	5
committed[.]” Id. (emphasis omitted).	6
{14} 	Here, Victim’s body was found in Oliver’s backyard in Albuquerque on	7
November 28, 2014. Four days prior to the body being discovered, Defendant and	8
Adonai 	Carrasco 	had 	been 	exchanging 	angry 	phone 	calls 	and 	texts. 	The	9
disagreement was over Defendant’s two-year old daughter he had with Angelita	10
Roan, who was Carrasco’s girlfriend during this time. Defendant and Carrasco	11
agreed to meet up for a fight. Carrasco went to the meet-up with Victim and Roan,	12
and Defendant brought his uncle, Billy Cordova. Defendant brought Cordova along	13
because he believed that Carrasco would not be coming to the confrontation alone.	14
{15} 	Once they arrived, Carrasco and Victim got out of the car. He and Victim took	15
off, running in different directions. Roan testified that after she, Carrasco, and	16
Victim arrived, she saw Defendant’s car approaching. Although Roan equivocated	17
over whether she actually saw Defendant, the prosecutor confronted her with her	18
prior statement where she identified Defendant as being there “for sure.” Roan was	19
also confronted with a prior statement where she told police that she heard Cordova	20

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yelling at the men when they were running and the gunfire erupted at that time. She	1
also testified that prior to the trial, she and Defendant had a conversation where	2
Defendant in effect told her she should perjure herself and testify that he was not	3
there on the night of the shooting. Defendant admitted in his testimony that he was	4
trying to get Roan to lie about his presence at the scene. Defendant also testified that	5
he called his uncle, Cordova, to go with him to the confrontation because he thought	6
Carrasco was also bringing someone else to fight. Defendant brought a mini baseball	7
bat to the fight. After they had gotten outside of the vehicle, Defendant heard a	8
gunshot that did not come from the direction of Carrasco and Victim, but from	9
behind him. He fled the scene, and four days later Victim’s body was discovered by	10
Oliver. Martin Jaramillo, who also lived in the area testified that on the night of the	11
confrontation he heard a gunshot and saw three people fighting outside of his house,	12
with one person on the ground, and the other two then fleeing. The person on the	13
ground stumbled as he tried to get up, but was then able to flee while holding his	14
side. Jaramillo discovered blood in the area where the men had been fighting. The	15
officers also located a small spent casing from a handgun at the scene of the crime.	16
{16} 	A forensic pathologist testified that Victim had been shot in the head and	17
could have survived for an indeterminate period of time after being shot. Although	18
the pathologist testified that Victim “had been dead for some time” before he was	19
found, he could not be exact because the rate of decomposition depended on the	20

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ambient temperature. The pathologist further testified the gunshot wound to the head	1
did not enter the cranial vault, resulting in bleeding between the skull and membrane.	2
Given this, Victim could have been able to move around after the injury, until	3
passing out and dying later. The pathologist determined the cause of death was	4
homicide.	5
{17} 	Although Defendant argues the evidence did not show that he was the one	6
who fired the gun, the evidence supports a finding by the jury that either he or	7
Cordova fired the weapon. Given that they shared the purpose of engaging in a	8
violent fight with Carrasco and Victim, it did not matter if it was Cordova who fired	9
the gun. See State v. Ortega, 2014-NMSC-017, ¶ 49, 327 P.3d 1076 (holding that,	10
for purposes of aiding and abetting, it did not matter if the defendant or his	11
codefendant fired the weapon). The jury could also consider Defendant’s highly	12
agitated state, the fact that he armed himself with a bat, and evidence that the	13
gunshots erupted as soon as the fighting began. While Defendant points to medical	14
testimony that the time of death could not be established with certainty, the expert	15
testimony indicated that Victim could have survived the gunshot wound to his skull	16
for a number of minutes or even hours. This is enough time to reach Oliver’s	17
backyard, which was within a block from the confrontation. Finally, Defendant’s	18
attempt to get Roan to perjure herself and say that Defendant was not there	19
constituted substantive evidence of a consciousness of guilt. See State v. Faubion,	20

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1998-NMCA-095, ¶ 13, 125 N.M. 670, 964 P.2d 834. All of these facts, taken	1
together, are sufficient to support Defendant’s second-degree murder conviction	2
under an accomplice liability theory.	3
CONCLUSION	4
{18} 	For the reasons set forth above, we affirm.	5
{19} 	IT IS SO ORDERED.	6
__________________________________	7
BRIANA H. ZAMORA, Judge	8
WE CONCUR:	9
_________________________________	10
JULIE J. VARGAS, JUDGE	11
_________________________________	12
JENNIFER L. ATTREP, JUDGE	13