State v. Serrano-Ortiz ( 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. 32,952
5 JOSE SERRANO-ORTIZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Judith Nakamura, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Santa Fe, NM
14 Josephine H. Ford, Assistant Public Defender
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 GARCIA, Judge.
1 {1} Defendant appeals from the district court’s judgment affirming the sentencing
2 order of the metropolitan court that found Defendant guilty of DWI and speeding. We
3 issued a notice of proposed summary disposition, proposing to affirm. Defendant has
4 filed a motion to amend his docketing statement to include additional issues and a
5 memorandum in opposition to our notice. The State filed a motion to dismiss the
6 appeal, as it did in several other cases, challenging the propriety of our review of
7 district court on-record proceedings. We delayed disposition of the motion pending
8 a formal decision from this Court. In State v. Carroll, 2013-NMCA-__, ¶¶ 1, 5, 9, 12
9 __ P.3d__ (No. 32,909, Oct. 21, 2013), this Court determined that appeals from on-
10 record decisions of the district court are properly before us, resolving all matters
11 raised in the State’s motion. The State’s motion to dismiss is therefore DENIED, and
12 we may proceed to disposition in this case. Having considered Defendant’s response
13 to our notice, we remain unpersuaded that Defendant demonstrated error. We deny
14 Defendant’s motion to amend the docketing statement and affirm.
15 Motion to Amend
16 {2} Defendant has filed a motion to amend the docketing statement, asking this
17 Court to review whether there was reasonable suspicion to support the stop and
18 whether there was probable cause to support his arrest. [MIO 13-17] In cases assigned
19 to the summary calendar, this Court will grant a motion to amend the docketing
2
1 statement to include additional issues if the motion (1) is timely, (2) states all facts
2 material to a consideration of the new issues sought to be raised, (3) explains how the
3 issues were properly preserved or why they may be raised for the first time on appeal,
4 (4) demonstrates just cause by explaining why the issues were not originally raised in
5 the docketing statement, and (5) complies in other respects with the appellate rules.
6 State v. Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100 N.M. 193, 668 P.2d 309.
7 This Court will deny motions to amend that raise issues that are not viable, even if
8 they allege fundamental or jurisdictional error. State v. Moore, 1989-NMCA-073,
9 ¶¶ 36-51, 109 N.M. 119, 782 P.2d 91, superceded by rule on other grounds as
10 recognized in State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730.
11 {3} Defendant has not stated whether and how his challenges to reasonable
12 suspicion and probable cause were preserved, and the record does not contain a
13 motion to suppress based on these grounds or otherwise suggest that these matters
14 were raised in metropolitan court. This omission, alone, warrants denial of the motion
15 to amend, because these matters must be preserved. See Rael, 1983-NMCA-081,
16 ¶¶ 15-16; Moore, 1989-NMCA-073, ¶¶ 44-46; see, e.g., State v. Talley,
17 2008-NMCA-148, ¶ 20, 145 N.M. 127, 194 P.3d 742 (refusing to reach a challenge
18 to an officer’s reasonable suspicion because it was not raised below). In addition, we
19 are not persuaded that Defendant’s challenges demonstrate fundamental error. The
3
1 officer’s testimony about Defendant’s driving establishes reasonable suspicion of
2 criminal activity, and the officer’s testimony about all of his observations of
3 Defendant prior to arrest establishes probable cause, as we recognized in our notice,
4 which analyzed this evidence in the context of Defendant’s sufficiency challenge. For
5 these reasons, we deny the motion to amend to add these issues.
6 {4} We also note that in his memorandum in opposition to our notice, Defendant
7 attacks the trustworthiness of the breath alcohol report in the context of his challenge
8 to the sufficiency of the evidence. [MIO 18-20] The reliability of evidence involves
9 its admissibility, not its sufficiency to support a verdict. See State v. Post, 1989-
10 NMCA-090, ¶ 22, 109 N.M. 177, 783 P.2d 487 (stating that in reviewing the
11 sufficiency of the evidence, we consider all the evidence admitted, even wrongfully
12 admitted evidence). Because Defendant did not raise this matter in his docketing
13 statement and it is not properly raised as part of a sufficiency challenge, we treat this
14 new argument as part of the motion to amend the docketing statement. We note that
15 although the record suggests that this issue was raised at trial, [RP 105] we hold that
16 the issue is not viable under State v. Anaya, for the reasons stated in the district court’s
17 memorandum opinion. 2012-NMCA-094, ¶¶ 19-22, 26-27, 287 P.3d 956, cert denied,
18 2012-NMCERT-007, 297 P.3d 599. [RP 107-08] As a result, we deny Defendant’s
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1 motion to amend the docketing statement to add this issue and do not address it
2 further.
3 Sufficiency of the Evidence
4 {5} Defendant continues to challenge the sufficiency of the evidence to support his
5 conviction for driving while intoxicated (DWI), under the impairment-to-the-slightest-
6 degree standard. [DS 11; MIO 17-18] Our notice detailed the evidence and legal
7 authorities that we believed supported affirmance of his conviction. Defendant’s
8 response to our notice does not dispute that such evidence was presented, nor does it
9 demonstrate how our application of those facts to the law is incorrect. We remain
10 unpersuaded that the metropolitan court erred.
11 {6} For the reasons stated in this Opinion and in our notice, we affirm the
12 metropolitan court’s sentencing order.
13 {7} IT IS SO ORDERED.
14
15 TIMOTHY L. GARCIA, Judge
16 WE CONCUR:
5
1
2 MICHAEL D. BUSTAMANTE, Judge
3
4 M. MONICA ZAMORA, Judge
6