State v. Marquez

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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 32,227 5 RUBEN MARQUEZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF DOÃ A ANA COUNTY 8 Fernando R. Macias, District Judge 9 Gary K. King, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Bennett J. Baur, Acting Chief Public Defender 14 Will O Connell, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 18 SUTIN, Judge. MEMORANDUM OPINION 1 {1} Defendant appeals his convictions for arson and conspiracy. We issued a notice 2 of proposed summary disposition, proposing to affirm. Defendant has filed a 3 memorandum in opposition. After due consideration, we remain unpersuaded. We 4 therefore affirm. 5 {2} Defendant has raised two issues, challenging both the sufficiency of the 6 evidence to support his convictions and the propriety of the sentence imposed. 7 Because we previously addressed these matters in the notice of proposed summary 8 disposition, we will not reiterate at length here. 9 {3} With respect to the sufficiency of the evidence, as we previously explained, 10 Defendant s conviction for arson was supported by evidence that Defendant aided and 11 abetted the commission of arson by driving two other individuals to and from a 12 location where they deliberately started a fire with an intent to damage or destroy a 13 structure and its contents. [MIO 1-2] This supplied an adequate evidentiary basis for 14 a conviction based on accessory liability. See NMSA 1978, § 30-1-13 (1972); State 15 v. Carrasco, 1997-NMSC-047, ¶ 6, 124 N.M. 64, 946 P.2d 1075 (providing that [a] 16 person who aids or abets in the commission of a crime is equally culpable ); see, e.g., 17 State v. Armijo, 120 N.M. 702, 703, 905 P.2d 740, 741 (Ct. App. 1995) (observing 18 that a getaway driver may properly be prosecuted and punished as a principal). It is 19 also sufficient to support a conviction for conspiracy. See id. (observing that a 2 1 getaway driver may properly be held criminally liable as both an accomplice and a co2 conspirator). 3 {4} In his memorandum in opposition, Defendant continues to argue that his 4 convictions should be reversed in light of the State s failure to prove that he knew in 5 advance that the other individuals intended to commit arson. [MIO 2] However, the 6 requisite knowledge and intent could properly be inferred from the circumstantial 7 evidence. See State v. Riley, 82 N.M. 298, 299, 480 P.2d 693, 694 (Ct. App. 1971) 8 ( The question of whether the alleged aider and abettor did share the principal s 9 criminal intent, and whether he knew the latter acted with criminal intent, is one of 10 fact for the jury and may be inferred from circumstances. (internal quotation marks 11 and citation omitted)); see also State v. Johnston, 98 N.M. 92, 95, 645 P.2d 448, 451 12 (Ct. App. 1982) (observing that conspiracy is rarely susceptible of direct proof and 13 that circumstantial evidence is sufficient to support a conspiracy conviction). As we 14 previously observed, the fact that Defendant maintained otherwise does not render the 15 State s evidence insubstantial. See generally State v. Rojo, 1999-NMSC-001, ¶ 19, 16 126 N.M. 438, 971 P.2d 829 (observing that the jury is free to reject [a d]efendant s 17 version of the facts ). 18 {5} With respect to the second issue on appeal, Defendant continues to argue that 19 his sentence is disproportionate to the degree of culpability in this case and constitutes 3 1 cruel and unusual punishment. [MIO 5-8] However, as we previously observed, 2 Defendant s sentence is within the permissible statutory range. It is the Legislature s 3 province to set penalties for crimes and only in exceptional circumstances will the 4 court invade this province. State v. Rueda, 1999-NMCA-033, ¶ 16, 126 N.M. 738, 5 975 P.2d 351. The four-year sentence of incarceration imposed in this case, together 6 with five additional years suspended and a two-year period of supervised parole [RP 7 76], does not in our estimation constitute punishment so disproportionate to the 8 character of the offenses as to shock the general conscience or violate principles of 9 fundamental fairness. Id. (internal quotation marks and citation omitted). We 10 therefore reject Defendant s challenge to his sentence. 11 {6} Accordingly, for the reasons stated earlier and in the notice of proposed 12 summary disposition, we affirm. 13 {7} IT IS SO ORDERED. 14 15 __________________________________ JONATHAN B. SUTIN, Judge 16 WE CONCUR: 17 _________________________________ 18 MICHAEL D. BUSTAMANTE, Judge 4 1 _________________________________ 2 LINDA M. VANZI, Judge 5

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