State v. Gamble

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1 2 3 4 5 6 This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 30,574 10 BENJAMIN GAMBLE, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 13 Thomas A. Rutledge, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Chief Public Defender 18 Carlos Ruiz de la Torre 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 KENNEDY, Judge. 23 Defendant appeals his conviction for aggravated battery (deadly weapon). We 24 issued a calendar notice proposing to affirm. Defendant has responded with a 1 memorandum in opposition. We note that Defendant has reorganized the order of his 2 issues as they are argued in his memorandum. For consistency purposes, we address 3 the issues in the order they were originally raised. We affirm. 4 Issue 1: Defendant continues to argue, pursuant to State v. Franklin, 78 N.M. 5 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 6 P.2d 1, 4-6 (Ct. App. 1985), that he was entitled to review the NCIC reports for some 7 of the State s witnesses. [MIO 9] The State made an oral representation to the 8 district court that they were not in possession of any NCIC materials that would be 9 admissible at trial. [MIO 5] Defendant does not dispute our calendar notice, which 10 observed that he did not request an in camera review by the district court to ascertain 11 the veracity of the State s representation, nor did Defendant request that the materials 12 be made part of the record and sealed for this Court s review. As such, we are not in 13 a position to consider Defendant s claim. See State v. Martin, 101 N.M. 595, 603, 686 14 P.2d 937, 945 (1984) (observing rule that matters not of record cannot be reviewed 15 on appeal); see also State v. Druktenis, 2004-NMCA-032, ¶ 44, 135 N.M. 223, 86 16 P.3d 1050 ( It is [the d]efendant s obligation to provide this Court with a sufficient 17 record proper. ). In addition, any prejudice is purely speculative. See In re Ernesto 18 M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 ( An assertion of 19 prejudice is not a showing of prejudice. ). 20 Issue 2: Defendant continues to argue, pursuant to Franklin and Boyer, that the 2 1 district court erred in denying his motion for a directed verdict. [MIO 13] The 2 question presented by a directed verdict motion is whether there was substantial 3 evidence to support the charge. State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 4 147, 157 (Ct. App. 1993). A sufficiency of the evidence review involves a two-step 5 process. Initially, the evidence is viewed in the light most favorable to the verdict. 6 Then the appellate court must make a legal determination of whether the evidence 7 viewed in this manner could justify a finding by any rational trier of fact that each 8 element of the crime charged has been established beyond a reasonable doubt. State 9 v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks 10 and citation omitted). 11 In order to support Defendant s conviction for aggravated battery with a deadly 12 weapon, the evidence had to show that Defendant intentionally struck Victim with a 13 beer bottle, and that the beer bottle was a deadly weapon, meaning that it could cause 14 death or great bodily harm. [RP 119] In this case, Defendant and other witnesses 15 testified that Defendant struck Victim over the head with a beer bottle. [MIO 2-4] 16 Defendant did not deny the incident, but relied on a self-defense theory. [MIO 3-4] 17 The jury was free to reject his version of events. See State v. Sutphin, 107 N.M. 126, 18 131, 753 P.2d 1314, 1319 (1988). With respect to the beer bottle, it was not only 19 capable of causing great bodily harm, but did so in this case, resulting in a serious 20 head injury that a physician characterized as potentially fatal. [MIO 7] As such, the 3 1 evidence was sufficient to support the conviction. 2 Issue 3: Pursuant to Franklin and Boyer, Defendant claims that the district 3 court erred in allowing Victim to testify as a rebuttal witness to matters that other 4 witnesses had already testified about. [MIO 12] Defendant has not pointed out how 5 this constituted error, and has not cited authority to support his claim that he should 6 have the last word on this matter. Even if there was error, it does not constitute 7 reversible error because Defendant concedes that this is merely a situation involving 8 cumulative testimony. See State v. Crain, 1997-NMCA-101, 124 N.M. 84, 946 P.2d 9 1095 (stating that erroneously admitted evidence is insufficiently prejudicial if it is 10 cumulative of other evidence). 11 Issue 4: Defendant continues to claim that he was entitled to a self-defense 12 instruction for non-deadly force, in addition to the deadly force self-defense 13 instruction that was given. [MIO 6; 122] However, the jury was instructed that it could 14 consider a conviction for aggravated battery with a deadly weapon, or aggravated 15 battery with great bodily harm. [RP 119, 121] No lesser-included instruction was 16 given. As such, our calendar notice proposed to hold that the non-deadly force self17 defense instruction that was tendered, UJI 14-5181 NMRA [MIO 7] was not 18 applicable because the jury would have had to find that [t]he force used by defendant 19 ordinarily would not create a substantial risk of death or great bodily harm . . . . UJI 20 14-5181[4]. If that were the case, the jury would have acquited Defendant of the two 4 1 charges against him because the evidence would not have supported the essential 2 elements of these crimes. 3 In his memorandum in opposition, Defendant argues that the jury could have 4 found that he used non-deadly force, but that it nevertheless caused great bodily harm. 5 [MIO 7] We note that Defendant was found guilty on the deadly weapon alternative, 6 and was therefore acquitted on the great bodily harm alternative, See State v. 7 Fernandez, 117 N.M. 673, 680, 875 P.2d 1104, 1111 (Ct. App. 1994) (observing rule 8 that appellate courts do not review acquittals). With respect to the deadly weapon 9 charge, we reiterate that the jury would have necessarily found him not guilty under 10 Defendant s theory without having to resort to a separate self-defense instruction 11 because of the essential elements of this crime. [RP 119] 12 For the reasons set forth above, we affirm. 13 IT IS SO ORDERED. 14 15 ___________________________________ RODERICK T. KENNEDY, Judge 16 WE CONCUR: 17 _________________________________ 18 MICHAEL D. BUSTAMANTE, Judge 5 1 _________________________________ 2 JONATHAN B. SUTIN, Judge 6

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