State v. Oropeza
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-36505 5 OSCAR OROPEZA, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Marci E. Beyer, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe. NM 11 for Appellee 12 Bennett J. Baur,Chief Public Defender 13 Nina Lalevic, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge. 18 {1} Defendant-Appellant Oscar Oropeza (Defendant) appeals from his jury trial 19 conviction for robbery, challenging (1) the denial of his motion to strike witnesses 1 because of a delay in scheduling witness interviews, and (2) the sufficiency of the 2 evidence to support his conviction for robbery. [DS 2, 7; RP 85-88] We issued a 3 notice proposing to summarily affirm. [CN 1, 5] Defendant filed a memorandum in 4 opposition, which we have duly considered. Remaining unpersuaded, we affirm. 5 {2} Defendant continues to argue the district court erred in denying his motion to 6 exclude witnesses based on the State’s failure to schedule witness interviews until two 7 business days before trial. [MIO 6] Defendant asserts the short time between the 8 interviews and the trial left inadequate time to prepare and violated his right to 9 effective cross-examination. [MIO 6, 8] As we noted in our proposed disposition, in 10 the absence of an “intentional refusal to comply with a court order, prejudice to the 11 opposing party, and consideration of less severe sanctions,” exclusion of a witness is 12 improper. State v. Harper, 2011-NMSC-044, ¶ 15, 150 N.M. 745, 266 P.3d 25. [CN 13 3] Aside from asserting trial counsel did not have sufficient time to prepare for trial, 14 Defendant does not indicate the State intentionally failed to comply with an order or 15 how cross-examination was deficient and caused actual prejudice. “An assertion of 16 prejudice is not a showing of prejudice.” In re Ernesto M., Jr., 1996-NMCA-039, 17 ¶ 10, 121 N.M. 562, 915 P.2d 318. We therefore conclude the district court did not 18 err in declining to exclude witnesses. 2 1 {3} Defendant also continues to argue the evidence was insufficient to support his 2 conviction for robbery. [MIO 3] Defendant first asserts inconsistent evidence 3 regarding the sequence of events shows the evidence was insufficient to convict him. 4 [MIO 5] “Contrary evidence supporting acquittal does not provide a basis for reversal 5 because the jury is free to reject Defendant’s version of the facts.” State v. Rojo, 19996 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829; State v. Salas, 1999-NMCA-099, ¶ 7 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve 8 any conflict in the testimony of the witnesses and to determine where the weight and 9 credibility lie). We therefore decline to consider Defendant’s asserted contrary 10 evidence. 11 {4} Defendant also argues the State failed to present evidence showing Defendant 12 intended to permanently deprive the store clerk of property the clerk owned when 13 Defendant took bottles of liquor and consumed them in the parking lot. [MIO 5] We 14 note the jury instruction does not require the victim of a robbery to be the owner of 15 the property taken. See UJI 14-1620 NMRA (requiring the State to prove (1) 16 Defendant took and carried away property from someone else, or from his immediate 17 control intending to permanently deprive that person of the property; (2) Defendant 18 took the property by use of force or violence or threatened force or violence; and (3) 19 this happened on or about October 2, 2014); NMSA 1978, § 30-16-2 (1973). Based 3 1 on the facts set forth in the docketing statement, we conclude the evidence was 2 sufficient to support a conviction for robbery when Defendant took liquor bottles from 3 the store clerk by force and then consumed them. [See DS 4-6] 4 {5} Accordingly, for the reasons set forth in our notice of proposed disposition and 5 herein, we affirm. 6 {6} IT IS SO ORDERED. 7 8 M. MONICA ZAMORA, Judge 9 WE CONCUR: 10 11 MICHAEL D. VIGIL, Judge 12 13 JENNIFER L. ATTREP, Judge 4
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