State v. Poolaw

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-37058 5 BRANDIE POOLAW, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 8 Louis P. McDonald, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 18 {1} Defendant Brandie Poolaw challenges the sufficiency of the evidence to support 19 her jury convictions for one count of aggravated assault upon a peace officer (deadly 1 weapon) and one count of resisting, evading, or obstructing an officer. [DS 1; RP 1112 12, 147-52] Unpersuaded by Defendant’s docketing statement, we issued a notice of 3 proposed summary disposition, proposing to affirm. Defendant has responded with 4 a memorandum in opposition to our notice. We have considered Defendant’s response 5 and remain unpersuaded. We, therefore, affirm. 6 {2} In our notice of proposed disposition, we set forth the jury instructions given 7 in this case, recounted the evidence presented at trial, and proposed to conclude that 8 there was sufficient evidence to support Defendant’s convictions. [CN 2-4] In 9 response, Defendant maintains that there was insufficient evidence to support her 10 convictions. [MIO 2-7] However, she does not provide new facts or authorities that 11 persuade us that our proposed summary disposition was in error. “Our courts have 12 repeatedly held that, in summary calendar cases, the burden is on the party opposing 13 the proposed disposition to clearly point out errors in fact or law.” Hennessy v. 14 Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683; see also State v. 15 Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that “[a] 16 party responding to a summary calendar notice must come forward and specifically 17 point out errors of law and fact[,]” and the repetition of earlier arguments does not 18 fulfill this requirement), superseded by statute on other grounds as stated in State v. 19 Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. 2 1 {3} With respect to the aggravated assault upon a peace officer with a deadly 2 weapon conviction, Defendant acknowledges that the State presented evidence that 3 while the officer was chasing Defendant and ordering her to stop, Defendant pulled 4 out a knife and held it out in front of her face, which suggested to the officer that 5 Defendant was willing to use the knife, and this scared the officer. [MIO 7] 6 Nevertheless, Defendant maintains that there was insufficient evidence to support this 7 conviction. [MIO 6-7] As discussed in our notice of proposed disposition, and based 8 on the foregoing facts, we conclude there was sufficient evidence to support 9 Defendant’s conviction for aggravated assault upon a peace officer with a deadly 10 weapon. 11 {4} With respect to the resisting, evading, or obstructing an officer conviction, 12 Defendant asserts that she did not know that the officer was attempting to arrest her. 13 [MIO 3-5] Defendant acknowledges the facts set forth in our notice of proposed 14 disposition. [MIO 1] Additionally, she recognizes that the relevant statute and the jury 15 instruction given required the State to prove that Defendant knew that the officer was 16 attempting to “apprehend or arrest” her. [MIO 3-4] As discussed in the notice of 17 proposed disposition, after the officer got out of her vehicle, she called out to 18 Defendant to speak with her; Defendant dropped her belongings and fled on foot; 19 then, the officer ordered Defendant to stop; the officer deployed her Taser toward 3 1 Defendant but missed; and Defendant kept running and yelling obscenities at the 2 officer. [CN 3-4] We conclude that there was sufficient evidence that Defendant knew 3 the officer was attempting to apprehend or arrest her. 4 {5} Viewing the evidence in the light most favorable to the guilty verdicts, we 5 conclude that there was sufficient evidence to support both of Defendant’s 6 convictions. See State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 7 1314 (“A reviewing court must view the evidence in the light most favorable to the 8 state, resolving all conflicts therein and indulging all permissible inferences therefrom 9 in favor of the verdict.”); see also State v. McGhee, 1985-NMSC-047, ¶ 17, 103 N.M. 10 100, 703 P.2d 877 (“The determination of the weight and effect of the evidence, 11 including all reasonable inferences to be drawn from both the direct and circumstantial 12 evidence is a matter reserved for determination by the trier of fact.”). 13 {6} For the reasons set forth in our notice of proposed disposition and herein, we 14 affirm. 15 {7} IT IS SO ORDERED. 16 17 _____________________________________ LINDA M. VANZI, Chief Judge 18 WE CONCUR: 19 ____________________________ 20 JULIE J. VARGAS, Judge 4 1 ____________________________ 2 DANIEL J. GALLEGOS, Judge 5

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