State v. Medina

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,805 5 MARTIN E. MEDINA, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Marci Beyer, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jose R. Coronado 13 Las Cruces, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VANZI, Judge. 17 {1} Defendant appeals from the district court’s judgment and sentence, convicting 18 him for criminal sexual penetration in the third degree (CSP III). Unpersuaded that 1 Defendant’s docketing statement demonstrated error in the district court, we issued 2 a notice of proposed summary disposition, proposing to affirm. Defendant has 3 responded to our notice with a memorandum in opposition and an amended docketing 4 statement. There is no need to amend the docketing statement in this case because the 5 amended docketing statement seeks not to add an issue, but to add certain information 6 missing from the original docketing statement. Thus, rather than permitting 7 amendment of the docketing statement, we have considered these documents in 8 concert to comprise the memorandum in opposition. See Rule 12-210(D)(3) NMRA 9 (indicating that a memorandum in response to our summary calendar notice is limited 10 to the issues raised in the docketing statement, and this Court may permit amendment 11 to the docketing statement to add issues, for good cause shown). Having considered 12 Defendant’s responses to our notice, we remain unpersuaded that he has demonstrated 13 error. Thus, we affirm. 14 {2} Although Defendant’s responses have provided additional information 15 regarding Issues I and III, [Amended DS 2-6; MIO 4] Defendant’s memorandum in 16 opposition states that it will not address our proposed disposition of Issue I, his 17 challenge to the sufficiency of the evidence, [MIO 2] and will not address our 18 proposed disposition of Issue III, [MIO 4] regarding the district court’s ruling 19 prohibiting defense counsel from “mentioning Ms. Tapia’s female partner’s name . . . 2 1 or from mentioning that Ms. Tapia was involved in a romantic relationship with the 2 young lady.” [DS 7] The failure to respond to our proposed disposition of an issue 3 constitutes an abandonment of that issue on appeal. When a case is decided on the 4 summary calendar, an issue is deemed abandoned where a party fails to respond to the 5 proposed disposition of that issue. See State v. Johnson, 1988-NMCA-029, ¶ 8, 107 6 N.M. 356, 758 P.2d 306. Thus, we deem Defendant’s Issues I and III to have been 7 abandoned. We do not address them further, except to note that we remain persuaded 8 that summary affirmance is appropriate based on the analysis in our notice. 9 {3} Defendant’s responses to our notice pursue only Issue II: whether the district 10 court erred by overruling defense counsel’s request to invoke the rule requiring 11 witnesses to be absent during trial testimony and by permitting the victim and her 12 attorney to be present in the courtroom throughout the trial. [Amended DS 6; MIO 213 4] In response to our analysis of this issue, Defendant states that trial counsel retracted 14 previous defense counsel’s stipulation to the victim’s presence throughout the trial and 15 re-invoked the rule of exclusion for the victim. [MIO 3] As grounds for the motion to 16 exclude the victim, defense counsel referred to “the extreme prejudice to his client, the 17 resulting fundamental error of allowing the victim to be present throughout the trial, 18 and the ability of the victim to structure her testimony to avoid impeachment.” [MIO 19 3] 3 1 {4} We are not persuaded that Defendant has demonstrated that the district court 2 erred by granting the victim’s presence throughout trial. The New Mexico 3 Constitution was amended in 1992 to recognize victims’ rights, including “the right 4 to attend all public court proceedings the accused has the right to attend[.]” N.M. 5 Const., art. II § 24(A)(5); see NMSA 1978, § 31-26-4(E) (1999) (stating that the 6 “victim shall have the right to . . . attend all public court proceedings the accused has 7 the right to attend”). Rule 11-615 NMRA, the rule of exclusion upon which Defendant 8 relies, by its own terms “does not authorize excluding . . . a person authorized by law 9 to be present.” Rule 11-615(D). The victim in the current case is entitled to the 10 protections and rights under the New Mexico Constitution and the Victims of Crime 11 Act because she is the victim of a criminal offense listed under NMSA 1978, § 31-2612 3(B)(11) (2003). See NMSA 1978, § 31-26-2(D) (1994) (stating that the purpose of 13 the Victims of Crime Act is “to assure that . . . the provisions of Article 2, Section 24 14 of the Constitution of New Mexico are implemented in statute”). Even presuming a 15 Defendant’s due process rights may prevail over the Victims’ Rights Amendment and 16 the Victims of Crimes Act, Defendant must prove, not simply assert, that the presence 17 of the victim at trial has actually harmed Defendant. See, e.g., State v. Guerra, 201218 NMSC-027, ¶ 30, 284 P.3d 1076 (recognizing that in the absence of demonstrating 19 harm done by alleged errors, there is no due process violation); In re Ernesto M., 4 1 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is 2 not a showing of prejudice.”). 3 {5} In the current case, Defendant does not claim that he was denied the opportunity 4 to cross-examine the victim about her testimony and any inconsistencies between her 5 pretrial statements and trial testimony that may have resulted from her presence in the 6 courtroom throughout trial. Nor does Defendant indicate that there were any 7 inconsistencies between her pretrial statements and trial testimony, let alone any 8 inconsistencies that would bear upon his guilt or innocence. Nor does Defendant 9 indicate that the victim’s presence throughout trial interfered with any of Defendant’s 10 constitutional rights. In addition, given the victim’s version of events—that she went 11 to sleep drunk after her birthday party and woke up to find Defendant penetrating her 12 from behind without her consent [DS 4-5]—a version that seems to have remained 13 constant from their inception, we fail to see how her trial testimony was influenced 14 by other witnesses’ testimony. 15 {6} Without a showing of harm, we are not persuaded that the district court’s ruling, 16 permitting the victim’s presence in the courtroom throughout trial, should be reversed. 17 For the reasons stated in this Opinion and in our notice, we affirm the district court’s 18 judgment and sentence. 19 {7} IT IS SO ORDERED. 5 1 2 __________________________________ LINDA M. VANZI, Judge 3 WE CONCUR: 4 _________________________________ 5 M. MONICA ZAMORA, Judge 6 _________________________________ 7 J. MILES HANISEE, Judge 6

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