State v. Ortega

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-36616 5 JOSEPH ORTEGA, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Christina P. Argyres, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Will O’Connell, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 18 {1} Defendant Joseph Ortega appeals following his jury trial convictions for selling 19 or giving alcoholic beverages to a minor; two counts of possession of a controlled 1 substance; resisting, evading, or obstructing an officer; and possession of drug 2 paraphernalia, and he raises four issues on appeal. [RP 209, 227; DS 1, 7] This Court 3 issued a notice proposing to summarily affirm. Defendant has filed a memorandum 4 in opposition, which we have duly considered. Remaining unpersuaded, we affirm. 5 {2} Defendant continues to argue the district court erred in denying his requested 6 instruction providing a defense to possession of drug paraphernalia, [MIO 7] but his 7 memorandum in opposition does not address any other issues raised in his docketing 8 statement. When a case is decided on the summary calendar, an issue is deemed 9 abandoned when a party fails to respond to the proposed disposition of that issue. See 10 State v. Johnson, 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306. We therefore 11 limit our discussion to the denial of Defendant’s proposed instruction providing the 12 defense of his enrollment in a harm reduction program. 13 {3} A defendant is entitled to jury instructions on his theory of the case if there is 14 evidence to support the instruction. The failure to give such an instruction is reversible 15 error. See State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69. “The 16 propriety of jury instructions given or denied is a mixed question of law and fact. 17 Mixed questions of law and fact are reviewed de novo.” State v. Salazar, 199718 NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. Defendant asserts the district court 19 improperly denied his proposed instruction regarding his participation in a harm 20 reduction program on the ground that Defendant’s testimony did not prove he was in 2 1 a program and the harm reduction defense does not apply to syringes containing a 2 controlled substance. [MIO 6-10] Defendant argues his testimony stating he was in 3 a harm reduction program was evidence supporting his defense instruction, and the 4 defense of participation in a harm reduction program is not limited to clean or unused 5 syringes. [MIO 7-10] As we previously noted, Defendant does not appear to have 6 disclosed or introduced a harm reduction card demonstrating his enrollment in a 7 program, and the existence and validity of the card were disputed. [CN 9] Thus, the 8 only evidence supporting Defendant’s proposed instruction was his own testimony 9 about his enrollment in a harm reduction program. [MIO 9-10] 10 {4} NMSA 1978, Section 24-2C-6 (1997) provides “[e]xchange or possession of 11 hypodermic syringes and needles in compliance with the procedures of the program 12 shall not constitute a violation of the Controlled Substances Act[.]” “[A] ‘participant’ 13 or ‘client’ means an intravenous drug user who exchanges a used hypodermic 14 syringe. . . for a sterile hypodermic syringe and needle in compliance with the 15 procedures of the program[.]” NMSA 1978, § 24-2C-3(B) (1997). Clients in a harm 16 reduction program shall be issued an identification card (SHARPS card) bearing a 17 unique code, but participation in a harm reduction program will not prohibit a person’s 18 arrest or prosecution at times other than when he is engaged in a harm reduction 19 activity. 7.4.6.10(B)(3), (4), (9) NMAC. “Harm reduction activities,” as they relate to 20 a client’s participation, means “distribution of new syringes and the collection of used 3 1 syringes [and] disposal methods for used syringes and other potential biohazard 2 material[.]” 7.4.6.7(G) NMAC. Beyond Defendant’s testimony stating he was carrying 3 a SHARPS card, it does not appear there was any evidence actually demonstrating 4 Defendant’s enrollment or showing Defendant was engaged in “harm reduction 5 activities” at the time he was arrested. Therefore, we conclude the evidence did not 6 support Defendant’s proposed instruction. Thus, we hold the district court did not err 7 in denying Defendant’s proposed instruction. 8 {5} Accordingly, for these reasons and those explained in our notice of proposed 9 disposition, we affirm. 10 {6} IT IS SO ORDERED. 11 12 __________________________________ LINDA M. VANZI, Chief Judge 13 WE CONCUR: 14 _________________________________ 15 JULIE J. VARGAS, Judge 16 _________________________________ 17 STEPHEN G. FRENCH, Judge 4

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