State v. Nathaniel L. ( 2016 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 v. NO. 34,864
5 NATHANIEL L.,
6 Child-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 John J. Romero, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellant
12 Robert E. Tangora, L.L.C.
13 Robert E. Tangora
14 Albuquerque, NM
15 for Appellee
16 MEMORANDUM OPINION
17 KENNEDY, Judge.
1 {1} The State appeals from the district court’s order granting in part Child’s motion
2 to suppress evidence and exclude testimony; order denying the State’s motion to
3 reconsider suppression; and amended order denying the State’s motion to reconsider.
4 The State argues on appeal that the district court erred in excluding Asset Protection
5 Officer Eric Recio’s testimony regarding his personal observations of an incident,
6 which incident was also recorded by surveillance equipment. In this Court’s notice of
7 proposed disposition, we proposed to reverse because (1) Rule 11-1002 NMRA does
8 not apply because the State was not seeking to prove the contents of the recording by
9 Recio’s testimony [CN 4–5]; (2) even if Rule 11-1002 does apply, the testimony
10 should have been admitted pursuant to Rule 11-1004 NMRA because the State met
11 its burden of establishing that the original was lost and that the loss was not the result
12 of bad faith [5–6]; and (3) the district court abused its discretion in suppressing the
13 testimony on due process grounds because, when the failure to gather evidence is
14 merely negligent, an oversight, or done in good faith, sanctions are inappropriate [CN
15 6–10]. Child filed a memorandum in opposition. We have given due consideration to
16 the memorandum in opposition and, remaining unpersuaded, we reverse.
17 {2} In his memorandum in opposition, Child raises no new arguments or issues that
18 were not otherwise addressed in this Court’s notice of proposed disposition, so we
19 refer Child to our responses therein. [CN 4–10] See Hennessy v. Duryea,
20 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly
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1 held that, in summary calendar cases, the burden is on the party opposing the proposed
2 disposition to clearly point out errors in fact or law.”). We additionally note that Child
3 contends that an “Asset Protection Officer” is de facto an arm of the State, the
4 destruction of the video was therefore attributable to the State, and the State destroyed
5 the video in bad faith. [MIO 4] However, Child has failed to provide any authority for
6 his contention that a Walmart asset protection officer is an officer of the State, so we
7 assume no such authority exists. See State v. Casares, 2014-NMCA-024, ¶ 18, 318
8 P.3d 200 (stating that “[w]e will not consider an issue if no authority is cited in
9 support of the issue, because absent cited authority to support an argument, we assume
10 no such authority exists”). We therefore conclude that the destruction of the video was
11 not attributable to the State.
12 {3} Moreover, Child’s contention that the video was destroyed in bad faith is
13 merely an assertion of counsel, see State v. Hanson, 2015-NMCA-057, ¶ 15, 348 P.3d
14 1070 (“[T]he mere assertions and arguments of counsel are not evidence.” (internal
15 quotation marks and citation omitted)), or, at best, an indication that there was a
16 conflict in the evidence. To the extent such a conflict existed, we reiterate that it was
17 for the district court to weigh the evidence and assess credibility, and we do not
18 engage in a reweighing of the evidence on appeal. See State v. Griffin, 1993-NMSC-
19 071, ¶ 17, 116 N.M. 689, 866 P.2d 1156 (“This court does not weigh the evidence and
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1 may not substitute its judgment for that of the fact finder so long as there is sufficient
2 evidence to support the verdict.” (internal quotation marks and citation omitted)).
3 {4} For the reasons set forth here and in our notice of proposed disposition, we
4 reverse the district court’s order granting in part Child’s motion to suppress evidence
5 and exclude testimony, order denying the State’s motion to reconsider suppression,
6 and amended order denying the State’s motion to reconsider.
7 {5} IT IS SO ORDERED.
8 _______________________________
9 RODERICK T. KENNEDY, Judge
10 WE CONCUR:
11 _________________________________
12 MICHAEL E. VIGIL, Chief Judge
13 _________________________________
14 TIMOTHY L. GARCIA, Judge
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