October 22, 2019- State of New Mexico v. Dennis J. May, No. A-1-CA-36461

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
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-36461	4
DENNIS J. MAY,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY	7
Kevin R. Sweazea, District Judge	8
Law Office of Mark W. Allen, LLC	9
Mark W. Allen	10
Albuquerque, NM	11
for Appellee	12
Dennis J. May	13
Edgewood, NM	14
Pro se Appellant	15
MEMORANDUM OPINION	16
VARGAS, Judge.	17
{1} 	Defendant Dennis May appeals his convictions for violations of the Torrance	18
County, N.M., Zoning Ordinance, Section 11(C) (1990, as amended through 2008),	19
setting out the “conditional uses” for which his property can be used, and the	20
Torrance County, N.M., Solid Waste Ordinance, Section 5(C) (1994, as amended	21
through 2016), prohibiting a person from permitting certain solid waste and	22
Court of Appeals of New Mexico
Filed 10/22/2019 9:33 AM

2
construction debris from accumulating upon property. On appeal, Defendant’s pro	1
se arguments are largely unintelligible, but from his brief in chief we glean that he	2
raises the following issues: (1) whether there is sufficient evidence to support both	3
convictions; (2) whether Defendant received ineffective assistance of counsel; (3)	4
whether the State’s prosecution of the zoning ordinance constitutes an unlawful	5
taking, violating Defendant’s Fifth and Fourteenth Amendment rights; (4) whether	6
various state laws permit his current property use; (5) whether the code enforcement	7
officer was qualified to testify about the condition of vehicles located on the	8
property; and (6) whether the code enforcement officer violated Defendant’s rights	9
by committing perjury in the initial criminal complaint. Because we find that there	10
is sufficient evidence to support both convictions, that Defendant has not developed	11
a record of ineffective assistance of counsel, and that the remaining arguments were	12
unpreserved, we affirm. As this is a memorandum opinion and the parties are	13
familiar with the facts of the case and the procedural background, we include the	14
relevant background information only where relevant to the analysis.	15
DISCUSSION	16
I. 	Sufficiency of the Evidence	17
{2} 	Defendant owns four lots located in Torrance County. In 2014 a county code	18
enforcement officer conducted an inspection of Defendant’s property and issued	19
citations 	for 	violations 	of 	the 	county’s 	Zoning 	Ordinance 	and 	Solid 	Waste	20

3
Ordinance. After a bench trial in district court, Defendant was convicted of one	1
violation of the conditional uses permitted under the Zoning Ordinance and one	2
violation of the Solid Waste Ordinance. On appeal, Defendant challenges the	3
sufficiency of the evidence to support those convictions.	4
A. 	Standard of Review	5
{3} 	“In reviewing the sufficiency of the evidence, we must view the evidence in	6
the light most favorable to the guilty verdict, indulging all reasonable inferences and	7
resolving all conflicts in the evidence in favor of the verdict[,]” State v. Cunningham,	8
2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176, and “disregard all evidence	9
and inferences to the contrary.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438,	10
971 P.2d 829. The Court then determines “whether the evidence viewed in this	11
manner could justify a finding by any rational trier of fact that each element of the	12
crime charged has been established beyond a reasonable doubt.” State v. Apodaca,	13
1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and	14
citation omitted). As we are reviewing the judgment resulting from a bench trial, we	15
measure the sufficiency of the evidence against the relevant ordinances. See State v.	16
Curry, 2002-NMCA-092, ¶¶ 4, 9, 132 N.M. 602, 52 P.3d 974 (measuring the	17
sufficiency of the evidence against the relevant statutes on appeal from a bench trial).	18

4
B. 	Zoning Ordinance Conviction	1
{4} 	In 1990 Torrance County implemented its Zoning Ordinance and zoned	2
Defendant’s property as “preplatted lands” (PL). Under the Ordinance, owners of	3
PL properties are entitled to use their lands for “[a]ll Permissive [u]ses allowed in	4
the [Rural Residential] District (RR)” and for “[a]ll Conditional [u]ses allowed in	5
the RR District” upon receipt of a permit for those conditional uses. Zoning	6
Ordinance, Section 10(B), (C)(1). Among the conditional uses allowed by the PL	7
Zoning Ordinance was use for home occupation. Zoning Ordinance, Section 11(C).	8
Any home occupation of a property zoned PL is limited such that:	9
a. 	Not more than 40 percent of the floor area of the dwelling unit,	10
nor more than 800 square feet of an accessory building shall be	11
used in the conduct of the home occupation[;]	12
. . . .	13
c. 	There shall be no exterior storage of materials unless completely	14
enclosed by a wall[;]	15
. . . .	16
e. 	If there is an occasional requirement to park additional vehicles	17
or 	to 	provide 	temporary 	outside 	storage 	of 	equipment 	or	18
materials 	on 	the 	premises, 	then 	such 	arrangements 	or	19
conditions shall be stated fully on the permit application[.]	20
Zoning 	Ordinance, 	Section 	11(C)(1)(a), 	(c), 	(e). 	In 	this 	case, 	prior 	to 	the	21
implementation of the Zoning Ordinance, Defendant was using his property for	22
home occupation, storing materials related to his service business there.	23

5
{5} 	Defendant’s use of his property was not in compliance with the Zoning	1
Ordinance when it went into effect. However, owners whose “lots, structures, or uses	2
of land or structures which were lawful before [the Zoning] Ordinance was passed	3
or amended” but are now nonconforming, were entitled to receive certificates of	4
nonconformance and continue the “nonconformity existing at the time [the Zoning]	5
Ordinance [took] effect[.]” Zoning Ordinance, Section 20(A), (C). Certificates of	6
nonconformance were intended “allow these nonconformities to continue until they	7
are removed, but not to encourage their survival.” Zoning Ordinance, Section 20(A).	8
Thus, 	the 	Zoning 	Ordinance 	prohibited 	property 	owners 	from 	“enlarg[ing],	9
expand[ing], or extend[ing]” the nonconforming use beyond the original certificate	10
of nonconformance. Zoning Ordinance, Section 20(D).	11
{6} 	Defendant was issued a certificate of nonconformance in October 1990 that	12
listed the present uses of the property and reason for nonconformance as “storage of	13
services company equipment—no retail outlet” and indicated that the property had	14
been used for that purpose since October 1989. Attached to the certificate was a	15
drawing of Defendant’s property showing a “temporary structure” measuring sixty	16
feet by thirty feet, an area designated as “temporary storage” measuring twenty-four	17
feet long by sixteen feet wide and a small area marked “open storage.”	18
{7} 	Defendant argues that there is insufficient evidence to support his conviction	19
for violating the Zoning Ordinance because the certificate of nonconformance allows	20

6
him to continue storing the items located on his property. In response, the State	1
argues that Defendant either abandoned the uses permitted by the certificate of	2
nonconformance or exceeded the scope of the certificate with his present use thereby	3
violating the Zoning Ordinance.	4
{8} 	At trial, Torrance County Code Enforcement Officer Dan De Costa testified	5
that the original certificate allowed Defendant to use the property for “storage of	6
services company equipment—no retail outlet.” As further explanation of the	7
business Defendant conducted on the property, Officer De Costa testified that	8
Defendant had submitted a business registration application to the county in	9
December 1993 for a “video amusements” business located at the property. Officer	10
De Costa testified that he inspected the property twice, first in July 2014 and again	11
twenty months later in February 2016 and saw more than twenty vehicles were stored	12
on the property “that appeared broken down and had weeds growing in around	13
them . . . and appeared they hadn’t run for years.” He also saw dilapidated mobile	14
homes, toys, phone booths, broken-down appliances, tires, mattresses, and other	15
items that the officer classified as “salvage material” scattered openly throughout	16
the property in no organized way. Additionally, the State introduced numerous	17
photographs of the property into evidence showing items described by Officer De	18
Costa as well as the general condition of the property.	19

7
{9} 	Officer De Costa testified that he saw no attempts to clean up the property	1
between his two inspections and the materials on the property did not appear to be	2
related to any “video amusements” business or any other ongoing business. Officer	3
De Costa testified that the current use was more like a salvage yard, which exceeded	4
the certificate of nonconformance and was otherwise not permitted within the	5
property’s conditional or permissive uses, in violation of the Zoning Ordinance.	6
{10} 	Based on the evidence presented, the district court found that “there does not	7
appear anything that appears [sic] to be used or continues to be used in connection	8
with any business.” Instead, the district court concluded that the property was being	9
used as a salvage yard, beyond the scope of the Defendant’s certificate of	10
nonconformance and in violation of the Zoning Ordinance. See Zoning Ordinance,	11
Section 5(B)(29) (defining a “salvage yard” as “an enclosed building or outside area	12
where used or secondhand materials are brought, sold, exchanged, stored, processed	13
or handled. Such materials include but are not limited to metals, paper, textiles, glass,	14
[six] or more motor vehicles, and components of motor vehicles”).	15
{11} 	Viewing the evidence in the light most favorable to the guilty verdict and	16
disregarding evidence and inferences to the contrary, we conclude that there is	17
sufficient evidence to support the district court’s conclusion that Defendant’s use of	18
his property exceeded the scope of the certificate of nonconformance and thus	19
violated the Zoning Ordinance.	20

8
C. 	Solid Waste Ordinance Conviction	1
{12} 	We 	next 	consider 	whether 	sufficient 	evidence 	supports 	Defendant’s	2
conviction for violating the Solid Waste Ordinance. The Solid Waste Ordinance	3
states that “[n]o person (whether owner, tenant, lessee, manager or other person)	4
shall permit any solid waste, litter, or [construction and demolition] debris or any	5
composition or residue thereof which is in an unsanitary condition or hazardous to	6
public health to remain upon the property.” Solid Waste Ordinance, Section 5(C).	7
The 	ordinance 	defines 	“solid 	waste,” 	in 	pertinent 	part, 	as 	“any 	garbage,	8
refuse . . . and 	other 	discarded 	material, 	including 	solid, 	liquid, 	semisolid 	or	9
contained gaseous material resulting from industrial, commercial, mining, and	10
agricultural operations and from community activities.” Solid Waste Ordinance,	11
Section 4(B)(16). The ordinance also defines “construction and demolition debris”	12
as “material generally considered to be water insoluble and nonhazardous in nature,	13
including, but not limited to, steel, glass, brick, concrete, asphalt roofing materials,	14
pipe, gypsum wallboard, and lumber from the construction or destruction of a	15
structure project.” Solid Waste Ordinance, Section 4(B)(4).	16
{13} 	Defendant challenges the sufficiency of the evidence for his conviction of the	17
Solid Waste Ordinance on two grounds. First, Defendant contends that the State	18
failed to provide evidence of an accumulation of solid waste that was in an	19
unsanitary or hazardous condition. Next, Defendant claims that because construction	20

9
and demolition equipment is non-hazardous in nature it cannot qualify as “unsanitary	1
or hazardous.” 	Defendant’s arguments are without merit. Officer De Costa’s	2
testimony that he saw solid waste, which included mattresses, discarded tires, and	3
general trash, as well as construction and demolition equipment, which included the	4
broken-down mobile homes, piles of metal, and pieces of appliances and equipment	5
on Defendant’s property, along with the photographs of all those items, are sufficient	6
to 	support 	the 	district 	court’s 	finding 	Defendant 	had 	allowed 	solid 	waste,	7
construction and demolition debris to accumulate on the property in an unsanitary	8
or hazardous condition.	9
{14} 	Defendant also argues on appeal that certain items on his property fall outside	10
the scope of the Solid Waste Ordinance because they were in trash cans or they could	11
be considered “firewood.” However, because these arguments were not raised before	12
the district court, we do not consider them. See State v. Leon, 2013-NMCA-011,	13
¶ 33, 292 P.3d 493 (“We generally do not consider issues on appeal that are not	14
preserved below.” (internal quotation marks and citation omitted)); see also Rule 12-	15
321(A) NMRA (“To preserve an issue for review, it must appear that a ruling or	16
decision by the trial court was fairly invoked.”).	17
D. 	Ineffective Assistance of Counsel	18
{15} 	We now turn to Defendant’s argument that he received ineffective assistance	19
of counsel. “The standard of review for claims of ineffective assistance of counsel	20

10
is de novo.” State v. Boergadine, 2005-NMCA-028, ¶ 33, 137 N.M. 92, 107 P.3d	1
532. “If facts necessary to a full determination are not part of the record, an	2
ineffective assistance claim is more properly brought through a habeas corpus	3
petition, although an appellate court may remand a case for an evidentiary hearing	4
if the defendant makes a prima facie case of ineffective assistance.” State v. Roybal,	5
2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.	6
{16} 	In this case, Defendant has not developed a record to such that we are able to	7
evaluate his claim. Defendant is “free to pursue habeas corpus proceedings where he	8
may actually develop the record with respect to these issues.” State v. Arrendondo,	9
2012-NMSC-013, ¶ 44, 278 P.3d 517.	10
II. 	Remaining Arguments	11
{17} 	Defendant’s remaining arguments are: (1) the enforcement of the Zoning	12
Ordinance 	constitutes 	an 	unlawful 	taking, 	violating 	Defendant’s 	Fifth 	and	13
Fourteenth Amendment rights; (2) various state laws permit his current property use;	14
(3) the district court erred in permitting the officer to testify condition of vehicles	15
because the officer “has no credentials allowing him to make [those] kinds of	16
determinations”; and (4) the officer violated Defendant’s rights by committing	17
perjury in the initial criminal complaint. However, because Defendant failed to raise	18
these arguments below, he failed to preserve them for review on appeal. See Rule	19
12-321(A) (“To preserve an issue for review, it must appear that a ruling or decision	20

11
by the trial court was fairly invoked.”). We therefore decline to address them. See	1
Leon, 2013-NMCA-011, ¶ 33 (“We generally do not consider issues on appeal that	2
are not preserved below.” (internal quotation marks and citation omitted)); see also	3
Gonzales v. Shaw, 2018-NMCA-059, ¶ 14, 428 P.3d 280 (“The primary purposes	4
for the preservation rule are: (1) to specifically alert the district court to a claim of	5
error so that any mistake can be corrected at that time, (2) to allow the opposing	6
party a fair opportunity to respond to the claim of error and to show why the court	7
should rule against that claim, and (3) to create a record sufficient to allow this Court	8
to make an informed decision regarding the contested issue.”).	9
CONCLUSION	10
{18} 	We affirm.	11
{19} 	IT IS SO ORDERED.	12
______________________________	13
JULIE J. VARGAS, Judge	14
WE CONCUR:	15
_______________________________	16
M. MONICA ZAMORA, Judge	17
_______________________________	18
JACQUELINE R. MEDINA, Judge	19