January 22, 2020- State of New Mexico v. Christopher Sais, No. A-1-CA-36471

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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-36471	4
CHRISTOPHER SAIS,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY	7
James M. Hudson, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Meryl E. Francolini, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Stephen E. McIlwain	14
Albuquerque, NM	15
for Appellant	16
MEMORANDUM OPINION	17
ATTREP, Judge.	18
{1} 	Defendant Christopher Sais appeals his conviction for aggravated battery with	19
a deadly weapon in violation of NMSA 1978, Section 30-3-5(C) (1969). Defendant	20
challenges the following on appeal: (1) the admission into evidence of a printout	21
Court of Appeals of New Mexico
Filed 1/22/2020 10:08 AM

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from a Facebook page; (2) the sufficiency of the evidence to support his conviction;	1
and (3) the propriety of the State’s comments in closing argument. We affirm.	2
BACKGROUND	3
{2} 	The following facts are derived from Thomas Mein’s (Victim) testimony.	4
Victim attended a barbecue at which he had a brief, unremarkable conversation with	5
Defendant who, Victim observed, was wearing a Dallas Cowboy’s jersey. Victim	6
had never met Defendant before this encounter. While at the barbecue, Victim	7
observed an argument between Defendant and a mutual friend, Arthur Lacey. Later	8
that night, Victim left the party with Lacey and Lacey’s girlfriend. Lacey drove,	9
while Lacey’s girlfriend sat in the passenger seat and Victim sat in the backseat on	10
the driver’s side. Lacey pulled into a parking lot because Defendant was following	11
them, and Lacey got out of the vehicle, followed by Victim. Victim testified that	12
Defendant then drove into the parking lot and ran into Victim with his SUV, injuring	13
him. Defendant next maneuvered his SUV as if he was going to run Victim over	14
again, but Lacey helped Victim back into his vehicle before that could happen. Once	15
inside, Victim said he saw another vehicle arrive in the parking lot and observed	16
Defendant shooting a handgun toward Lacey’s vehicle.	17
{3} 	Defendant was charged with aggravated battery with a deadly weapon	18
(vehicle), aggravated assault with a deadly weapon (firearm), and shooting at or from	19
a motor vehicle. At trial, the State presented evidence through three witnesses—	20

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Victim and two officers. Defendant did not present any witnesses. During Victim’s	1
direct examination, the district court admitted a printout of a Facebook page	2
purported to be that of Defendant, containing two posts alleged to be remarks about	3
Defendant’s court date and Victim. The jury convicted Defendant of aggravated	4
battery, and the district court declared a mistrial for jury disagreement on the	5
remaining two counts. The State subsequently dismissed these counts. Defendant	6
appeals his conviction for aggravated battery.	7
DISCUSSION	8
{4} 	Before we address the merits of Defendant’s argument, we pause to take note	9
of the deficiencies in Defendant’s appellate counsel’s briefing. Counsel presents the	10
vast majority of Defendant’s claims of error in terse, summary fashion, failing to	11
provide developed analysis. As has often been stated, our appellate courts have no	12
obligation to review unclear arguments or develop arguments on behalf of a party.	13
See, e.g., Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53;	14
State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031. With these deficiencies in	15
mind, we review Defendant’s claims of error as best we can.	16
I. 	Admission of the Facebook Printout	17
{5} 	Defendant challenges the admission of a printout from a Facebook page, in	18
which 	Defendant 	purportedly 	discussed 	his 	upcoming 	court 	appearance 	and	19

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disparaged Victim. 1 Specifically, Defendant asserts that the State failed to properly	1
authenticate or lay a sufficient foundation to attribute the contents of the Facebook	2
printout to him. 2
3
1As a preliminary matter, contrary to our appellate rules, Defendant did not
designate the Facebook printout as an exhibit on appeal and has not described its
contents in either his brief in chief or reply brief. See Rule 12-212(A) NMRA
(requiring appellant to designate documentary exhibits on appeal). Although the
State read from the exhibit during closing arguments and provides a cursory
description of the exhibit in its answer brief, we do not have access to the full
contents of the exhibit. While Defendant’s failure to designate the challenged exhibit
may be grounds enough to decline review, as set forth below, we otherwise
determine that Defendant has failed to meet his burden on appeal. See Headley v.
Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076
(declining to review an undeveloped argument unsupported by “facts that would
allow us to evaluate [the appellant’s] claim”).
2 Defendant 	additionally 	argues 	that 	the 	Facebook 	printout 	contained
inadmissible hearsay. We agree with the State that Defendant’s hearsay objection
was not preserved. “In order to preserve an issue for appeal, it is essential that a party
must make a timely objection that specifically apprises the [district] court of the
claimed error and invokes an intelligent ruling thereon.” State v. Janzen, 2007-
NMCA-134, ¶ 11, 142 N.M. 638, 168 P.3d 768 (internal quotation marks and
citation omitted); see also Rule 12-321(A) NMRA (same). Although Defendant
objected on hearsay grounds twice during Victim’s testimony, Defendant objected
only to relevance and foundation when the State moved for the exhibit’s admission.
Consequently, Defendant’s hearsay argument is not preserved, and we decline to
review it. See State v. Neswood, 2002-NMCA-081, ¶ 18, 132 N.M. 505, 51 P.3d
1159 (providing that evidentiary objections must generally be made at the time the
evidence is offered); see also State v. Leon, 2013-NMCA-011, ¶ 33, 292 P.3d 493
(“We generally do not consider issues on appeal that are not preserved below.”
(internal quotation marks and citation omitted)). We do note, however, that even if
Defendant had preserved the hearsay objection, we would conclude, for the same
reasons set forth below, that Defendant has failed to meet his burden of establishing
the district court abused its discretion in admitting the Facebook printout.

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{6} 	“We review the admission of evidence under an abuse of discretion standard	1
and will not reverse in the absence of a clear abuse.” State v. Candelaria, 2019-	2
NMCA-032, ¶ 41, 446 P.3d 1205 (internal quotation marks and citation omitted).	3
“We will not presume that the district court abused its discretion, but will instead	4
presume the rectitude and regularity of the proceedings. The party challenging an	5
evidentiary ruling bears the burden of establishing that it was obviously erroneous,	6
arbitrary or unwarranted.” Salehpoor v. N.M. Inst. of Mining & Tech., 2019-NMCA-	7
046, ¶ 26, 447 P.3d 1169 (internal quotation marks and citations omitted); see also	8
State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that	9
there is a presumption of correctness in the rulings or decisions of the district court,	10
and the party claiming error bears the burden of showing such error). Based on the	11
record before us and the limited argument presented by Defendant, we conclude	12
Defendant has not met this burden.	13
{7} 	The entirety of Defendant’s authentication argument is as follows: “There is	14
. . . a failure of authentication linking [Defendant] to [the Facebook printout]. The	15
only evidence of a nexus between [Defendant] and the Facebook page is his picture	16
appearing on it as shown by the testimony of [Victim] before the admission of [the	17
Facebook 	printout].” 	In 	response, 	the 	State 	maintains 	that 	Defendant’s	18
authentication argument is so unsupported it should not be considered. Because	19
Defendant cites no authority to support his argument that the Facebook printout was	20

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not properly authenticated, we assume no such authority exists. In re Adoption of	1
Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“We assume where	2
arguments in briefs are unsupported by cited authority, counsel after diligent search,	3
was unable to find any supporting authority. We therefore will not do this research	4
for counsel.”). Nor does Defendant otherwise develop his authentication argument	5
for our review, and we decline to do so on his behalf. Elane Photography, LLC,	6
2013-NMSC-040, ¶ 70 (“requir[ing] that the parties adequately brief all appellate	7
issues” and providing that “[t]o rule on an inadequately briefed issue, [we] would	8
have to develop the arguments [ourselves], effectively performing the parties’ work	9
for them”); Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court	10
has no duty to review an argument that is not adequately developed.”). We conclude,	11
based on the foregoing, Defendant has not met his burden to establish the district	12
court abused its discretion in admitting the Facebook printout.	13
{8} 	Nevertheless, even if we assume Defendant established the district court erred	14
in admitting the Facebook printout, we would conclude that Defendant again has not	15
met his burden under our harmless error standard. See State v. Tollardo, 2012-	16
NMSC-008, ¶ 25, 275 P.3d 110 (“Improperly admitted evidence is not grounds for	17
a new trial unless the error is determined to be harmful.”). Where, as here, the error	18
is evidentiary, rather than constitutional, we evaluate whether there is a reasonable	19
probability that the error affected the verdict. Id. ¶ 36. “Defendant bears the initial	20

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burden of demonstrating that he was prejudiced by the error.” State v. Astorga, 2015-	1
NMSC-007, ¶ 43, 343 P.3d 1245.	2
{9} 	Defendant has not carried this initial burden of establishing prejudice.	3
Defendant argues that while Victim identified him in open court, “the one and only	4
time prior to the incident that [Victim] met [Defendant] was at the barbecue[,]” and	5
the Facebook printout thus “bolstered” Victim’s in court identification. Defendant	6
does not elaborate on this claim of prejudice. What is more, Defendant fails to	7
accurately 	account 	for 	the 	identification 	evidence 	at 	trial. 	First, 	contrary 	to	8
Defendant’s briefing, Victim not only identified Defendant in court but also picked	9
Defendant out of a photo array close in time to the incident. Second, Victim’s in-	10
court identification was unequivocal. Victim testified that he spoke with Defendant	11
at the barbecue, and that he recognized Defendant’s jersey and saw Defendant’s face	12
when he hit Victim with his SUV. Victim elaborated that when Defendant hit Victim	13
with his SUV, “[Defendant’s] face, the driver’s window, was right there” and that	14
Victim “could see right in the car.” Third, based on our review of the record, the	15
Facebook printout amounted to attenuated identification evidence at best. In light of	16
the 	above, 	Defendant 	fails 	to 	demonstrate 	why 	the 	Facebook 	printout 	was	17
prejudicial. Nor has he cited any legal authority in support of his claim of prejudice.	18
{10} 	We 	therefore 	conclude 	Defendant 	has 	not 	met 	his 	initial 	burden 	of	19
demonstrating prejudice, and even if the Facebook printout was admitted in error, it	20

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was harmless. See State v. Cox, No. A-1-CA-35997, mem. op. ¶¶ 17, 18 (N.M. Ct.	1
App. May 30, 2019) (non-precedential) (concluding the defendant had not met his	2
burden when he made only conclusory assertions of prejudice, articulated no theory	3
of prejudice, and cited no legal authority to support his claim of prejudice).	4
II. 	Sufficiency of the Evidence	5
{11} 	We turn next to whether there was sufficient evidence to support Defendant’s	6
conviction for aggravated battery with a deadly weapon. To review the sufficiency	7
of 	the 	evidence, 	we 	must 	evaluate 	whether 	substantial 	evidence, 	direct 	or	8
circumstantial, supports a verdict of guilty beyond a reasonable doubt with respect	9
to every element essential to a conviction. State v. Montoya, 2015-NMSC-010, ¶ 52,	10
345 P.3d 1056. We view the “evidence in the light most favorable to the guilty	11
verdict, indulging all reasonable inferences and resolving all conflicts in the	12
evidence in favor of the verdict.” State v. Torrez, 2013-NMSC-034, ¶ 40, 305 P.3d	13
944 (internal quotation marks and citation omitted).	14
{12} 	“Jury instructions become the law of the case against which the sufficiency of	15
the evidence is to be measured.” State v. Jackson, 2018-NMCA-066, ¶ 22, 429 P.3d	16
674 (internal quotation marks and citation omitted). Defendant challenges only the	17
sufficiency of the evidence for one element—intent—and we limit our discussion	18
accordingly. The jury was instructed, in relevant part, that to find Defendant guilty	19
of aggravated battery with a deadly weapon, the State must prove beyond a	20

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reasonable doubt that Defendant “intended to injure [Victim] or another[.]” See UJI	1
14-322 NMRA (emphasis added). Defendant argues there was insufficient evidence	2
that he intended to injure Victim, asserting the only direct evidence of intent came	3
from Victim who said, “I don’t know if [Defendant] meant to hit me, but I was the	4
one that was hit.” Defendant’s argument lacks merit on both the law and the facts.	5
{13} 	As for the law, Defendant ignores the transferred intent doctrine. “When a	6
criminal statute matches specific intent with a specific victim, the doctrine of	7
transferred intent protects an unintended victim.” State v. Fekete, 1995-NMSC-049,	8
¶ 21, 120 N.M. 290, 901 P.2d 708 (internal quotation marks and citation omitted).	9
In other words, “the perpetrator’s intent to . . . injure a specific victim transfers to	10
the unintended victim.” Id. “[W]hen all of the elements of an offense are met, with	11
the exception that the victim differs from the one the perpetrator intended to harm,	12
criminal liability should be imposed.” Id. ¶ 22; see also UJI 14-322 use note 7	13
(providing for use of the phrase “or another,” as was done in the jury instructions in	14
this case, when “the intent was directed generally or at someone other than the	15
ultimate victim”). It thus is of no consequence that Defendant may not have intended	16
to injure Victim so long as he had the intent to injure someone.	17
{14} 	As for the facts, there was ample evidence of such intent. Although Defendant	18
focuses solely on what he deems “direct evidence of intent,” it is well established	19
that “[i]ntent is subjective and is almost always inferred from other facts in the case,	20

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as it is rarely established by direct evidence.” State v. Duran, 2006-NMSC-035, ¶ 7,	1
140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). Victim	2
testified that, following an argument between Lacey and Defendant, Victim left the	3
barbecue with Lacey and Lacey’s girlfriend in Lacey’s vehicle. Eventually, Lacey	4
pulled into a store parking lot because Defendant was following them. Lacey and	5
Victim both exited the vehicle from the driver’s side, and as Victim stood behind	6
Lacey, Defendant hit Victim with his SUV. Victim testified that Defendant then	7
came back around with his SUV as if he was going to run Victim over again.	8
{15} 	Based on the foregoing, there was sufficient evidence for the jury to infer that	9
Defendant intended to injure Victim or Lacey. See State v. Morales, 2002-NMCA-	10
052, ¶ 34, 132 N.M. 146, 45 P.3d 406 (concluding there was sufficient evidence	11
from which the jury could infer the defendant’s intent to injure the deputy when the	12
defendant drove straight at him), overruled on other grounds by Tollardo, 2012-	13
NMSC-008, ¶ 37 n.6; see also Fekete, 1995-NMSC-049, ¶¶ 21-22 (providing for	14
transferred intent). To the extent Victim’s testimony regarding whether he believed	15
Defendant intended to hit him may have conflicted with the jury’s verdict, we	16
disregard such evidence. See State v. Simmons, 2018-NMCA-015, ¶ 13, 409 P.3d	17
1030 (“[W]e defer to the fact-finder when it weighs the credibility of witnesses and	18
resolves conflicts in witness testimony.” (internal quotation marks and citation	19

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omitted)). 	We 	therefore 	conclude 	sufficient 	evidence 	supports 	Defendant’s	1
conviction for aggravated battery with a deadly weapon.	2
III. 	Closing Argument	3
{16} 	Defendant finally argues that it was impermissible for the State to comment	4
during closing arguments on Defendant’s power to subpoena Lacey and Lacey’s	5
girlfriend. Defendant contends this amounted to improper burden shifting and the	6
district court erred in overruling his objection to the prosecutor’s argument.	7
{17} 	We have previously addressed and disposed of a similar contention in State v.	8
Vallejos, 1982-NMCA-146, 98 N.M. 798, 653 P.2d 174. In Vallejos, the prosecutor	9
during closing arguments asked where the defendant’s alibi witnesses were. Id.	10
¶¶ 10-11. The defendant argued, as here, that the prosecutor’s comments improperly	11
shifted the burden of proof to the defendant. Id. ¶ 14. This Court rejected the	12
defendant’s claim of error, noting the jury had been properly instructed on the burden	13
of proof and the comment was no more than argument by counsel that the	14
unproduced witnesses would not have been favorable to the defendant. Id. ¶¶ 15-16.	15
The Court further made clear that “[a]lthough no instruction is to be given	16
concerning the production of witnesses, New Mexico law permits comment, in	17
closing argument, concerning the failure to call a witness.” Id. ¶ 13. This holding	18
has been reaffirmed by this Court, as well as our Supreme Court. See State v.	19

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Gonzales, 1991-NMSC-075, ¶ 20, 112 N.M. 544, 817 P.2d 1186; State v. Estrada,	1
2001-NMCA-034, ¶ 34, 130 N.M. 358, 24 P.3d 793.	2
{18} 	Defendant acknowledges the above precedent forecloses his claim of error but	3
asks that we revisit our holding in Vallejos. Defendant, however, does so without	4
discussing why this Court ought to disregard the vital principles of stare decisis. See	5
Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶¶ 33-34, 125 N.M. 721, 965 P.2d	6
305 (discussing the importance of stare decisis and the special justification necessary	7
to depart from prior precedent). For this reason, we decline to entertain Defendant’s	8
argument. Finding Vallejos controls, we conclude the State’s comments were not	9
improper and the district court did not err in overruling Defendant’s objection.	10
CONCLUSION	11
{19} 	For the foregoing reasons, we affirm.	12
{20} 	IT IS SO ORDERED.	13
_________________________________	14
JENNIFER L. ATTREP, Judge	15
WE CONCUR:	16
_________________________________	17
KRISTINA BOGARDUS, Judge	18
_________________________________	19
MEGAN P. DUFFY, Judge	20