State v. Otero ( 2013 )

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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. 33,033
5 RICHARD K. OTERO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
8 Steven L. Bell, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Karl Erich Martell, Assistant Public Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 GARCIA, Judge.
1 {1} Richard K. Otero (Defendant) appeals his conviction for aggravated battery
2 with a deadly weapon. We previously issued a notice of proposed summary
3 disposition, proposing to uphold the conviction. Defendant has filed a memorandum
4 in opposition. After due consideration, we remain unpersuaded. We therefore affirm.
5 {2} Defendant has raised a single issue, challenging the sufficiency of the evidence.
6 When presented with an argument of this nature this Court must view the evidence in
7 the light most favorable to the verdict, indulging all reasonable inferences and
8 resolving all conflicts in the evidence in favor of the verdict. State v. Riley,
9 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656. “[C]ontrary evidence supporting
10 acquittal does not provide a basis for reversal because the jury is free to reject [the
11 d]efendant’s version of the facts.”, overruled on other grounds by State v. Montoya,
12 2013-NMSC-020, 306 P.3D 426 (internal quotation marks and citation omitted). State
13 v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Nor will this Court
14 “evaluate the evidence to determine whether some hypothesis could be designed
15 which is consistent with a finding of innocence.” State v. Graham, 2005-NMSC-004,
16 ¶ 13, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation omitted).
17 {3} As we previously described at length in the notice of proposed summary
18 disposition, the State presented sufficient evidence to support each of the elements of
19 the offense. To very briefly summarize, the testimony of several witnesses established
2
1 that Defendant attacked the victim with a dowel, causing the victim to suffer injuries
2 to his arm and head for which he subsequently received medical care. This evidence
3 supplied adequate support for the conviction. See, e.g., State v. Foxen,
4 2001-NMCA-061, ¶¶ 3-5, 17, 130 N.M. 670, 29 P.3d 1071 (rejecting a challenge to
5 the sufficiency of the evidence to support a conviction for aggravated battery with a
6 deadly weapon, in light of testimony of the victim and other witnesses that the
7 defendant had aggressively attacked the victim by striking and ultimately stabbing
8 him).
9 {4} In his memorandum in opposition we understand Defendant to continue to urge
10 the Court to reweigh the evidence in this case, specifically with respect to the
11 characterization of the stick as a deadly weapon. [MIO 3-4] However, as a reviewing
12 court, we cannot second-guess the jury’s determination. See State v. Bennett,
13 2003-NMCA-147, ¶ 20, 134 N.M. 705, 82 P.3d 72 (recognizing the limited role of the
14 reviewing court, relative to the assessment of conflicting evidence); Foxen, 2001-
15 NMCA-061, ¶17 (observing that “the jury was not obligated to believe [the
16 d]efendant’s testimony, to disbelieve or discount conflicting testimony, or to adopt the
17 defendant’s view).” We further acknowledge that no deadly injury was inflicted and
18 no overnight hospitalization may have been required. [MIO 4] However, it was not
19 incumbent upon the State to demonstrate that the victim suffered such grave injuries.
3
1 The State was merely required to show that Defendant struck the victim with a
2 wooden dowel and that a wooden dowel, when used as a weapon, could cause death
3 or great bodily harm. [RP 75] See UJI 14-322 NMRA (defining the elements of
4 aggravated battery with a deadly weapon); see also State v. Traeger,
5 2001-NMSC-022, ¶ 16, 130 N.M. 618, 29 P.3d 518 (“[W]e require that a jury
6 determine, given the defendant’s use, if the [object] was capable of producing death
7 or great bodily harm.” (emphasis added) (alteration in original) (internal quotation
8 marks and citation omitted)). This requirement was duly satisfied. See generally State
9 v. Neatherlin, 2007-NMCA-035, ¶ 13, 141 N.M. 328, 154 P.3d 703 (listing a variety
10 of objects that can be found to be deadly weapons, including sticks).
11 {5} Accordingly, for the reasons stated above and in the notice of proposed
12 summary disposition, we affirm.
13 {6} IT IS SO ORDERED.
14
15 TIMOTHY L. GARCIA, Judge
16 WE CONCUR:
17
18 JONATHAN B. SUTIN, Judge
4
1
2 MICHAEL E. VIGIL, Judge
5