State v. Herman

Annotate this Case

Download PDF

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-37470 5 SCOTT HERMAN, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline D. Flores, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 13 14 15 Bennett J. Baur, Chief Public Defender Santa Fe, NM Steven J. Forsberg, Assistant Appellate Defender Albuquerque, NM 16 for Appellant 17 18 VANZI, Judge. MEMORANDUM OPINION 1 {1} Defendant, Scott Herman, appeals his conviction for assault. We issued a notice 2 of proposed summary disposition proposing to affirm, and Defendant has responded 3 with a timely memorandum in opposition and a motion to amend the docketing 4 statement. We have considered Defendant’s arguments and remain unpersuaded that 5 our initial proposed disposition was incorrect. We therefore affirm. 6 {2} We have already outlined the procedural and factual background in our notice 7 of proposed summary disposition. Therefore, in order to avoid unnecessary repetition, 8 we will focus instead on the contents of Defendant’s memorandum in opposition, 9 discussing only such facts as are relevant to his arguments. 10 {3} In his docketing statement, Defendant argued that the district court erred in 11 allowing Detective Allred to testify that Defendant had a possessory interest in the 12 pickup truck described by the victim, Mr. Rusconi, and to testify that this truck was 13 photographed outside a residence associated with Defendant. Defendant argued that 14 the introduction of this evidence was contrary to evidentiary rules regarding the 15 necessity of personal knowledge, the rule against hearsay, and his right to 16 confrontation. [DS 9] 17 {4} We proposed summary affirmance on these issues, and Defendant does not 18 respond to our proposed disposition in his memorandum in opposition, instead 2 1 specifically resting on the docketing statement. [MIO 2] Accordingly, we affirm on 2 these issues for the reasons stated in our notice of proposed summary disposition. 3 {5} Defendant does seek to raise a new issue in his memorandum in opposition 4 through a motion to amend the docketing statement. [MIO 1-2] In his motion to 5 amend, Defendant argues that the district court erred in denying his request for a 6 limiting instruction pursuant to Rule 11-105 NMRA (providing for a limiting 7 instruction when evidence is admissible “for a purpose but not admissible . . . for 8 another purpose”). 9 {6} We understand the relevant facts on this issue as follows based on the recitation 10 of facts in the docketing statement, which Defendant does not dispute in his 11 memorandum in opposition. Prior to trial, Defendant filed a motion in limine to 12 exclude any reference to Mr. Herman’s involvement in the shoplifting and drug 13 possession incidents that occurred at Sportsman’s Warehouse. [RP 78-79] Defendant 14 argued that Detective Allred should not be able to testify that the license plate and 15 truck described by Mr. Rusconi were linked to Defendant or his address because 16 Detective Allred did not have personal knowledge; rather the information came from 17 on out-of-court statement by the police officer who investigated the Sportsman’s 18 Warehouse incident. [DS 4] The State responded that such evidence was not being 19 introduced for the truth of the matter asserted, but was intended to show the continuity 3 1 of the investigation and explain why Detective Allred identified Defendant as a 2 suspect. [DS 5] 3 {7} The district court delayed ruling on the motion until it heard from Detective 4 Allred at trial. [DS 5] The district court ultimately determined that this evidence was 5 not inadmissible under the rule against hearsay. [DS 6] However, the district court 6 ruled that any reference to Defendant’s shoplifting and possession of a controlled 7 substance arrest was not admissible under Rule 11-404(B) NMRA and Rule 11-403 8 NMRA. [DS 6] The district court ruled that Detective Allred could testify that he was 9 able to link the truck described by Mr. Rusconi to Defendant by searching a database 10 and that he found an address liked to Defendant on that database. [DS 6] Detective 11 Allred was also allowed to testify that he used Google Maps to find a photo of the 12 address which showed a similar truck parked in front of that address. [DS 6] 13 {8} Defendant then requested a limiting instruction under Rule 11-105, asking that 14 the jury be instructed that it could not consider Detective Allred’s testimony for the 15 truth of whether Defendant actually possessed the truck or resided at the address. [DS 16 7] The district court denied the requested instruction, and Detective Allred testified 17 that he obtained information from a police database that Defendant possessed a truck 18 that matched the description and license plate provided by Mr. Rusconi. Detective 4 1 Allred testified that he was able to obtain a picture of a truck on Google Maps, and the 2 Google Maps photo was admitted. [DS 7] 3 Rule 11-105 provides: 4 5 6 7 If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. 8 {9} We understand Defendant to contend that Detective Allred’s testimony was 9 inadmissible hearsay if offered for any purpose other than to explain the course of the 10 investigation. However, as we noted in our notice of proposed disposition, with 11 respect to his hearsay argument, Defendant only informed us that the district court 12 determined that the rule against hearsay did not bar the evidence. Defendant did not 13 inform us whether the district court ruled that the evidence was not hearsay or that it 14 was admissible under a hearsay exception. Defendant also has not informed us of the 15 basis for the district court’s ruling denying a limiting instruction, either in his 16 docketing statement or in his memorandum in opposition. See State v. Rojo, 199917 NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d 829 (stating that “[w]here there is a 18 doubtful or deficient record, every presumption must be indulged by the reviewing 19 court in favor of the correctness and regularity of the trial court’s judgment” 20 (alteration, internal quotation marks, and citation omitted)). Accordingly, we are not 21 in a position to evaluate the merits of this argument or the district court’s ruling. On 5 1 the record before us, therefore, and in the absence of complete information, we cannot 2 say that the district court erred in denying the request for a limiting instruction. We 3 therefore deny the motion to amend the docketing statement on the basis that 4 Defendant has not shown that the issue is viable. See State v. Rael, 1983-NMCA-081, 5 ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309 (discussing requirements for amending a 6 docketing statement, including that issue sought to be raised must be viable). 7 CONCLUSION 8 {10} For these reasons, we affirm Defendant’s convictions. 9 {11} IT IS SO ORDERED. 10 11 LINDA M. VANZI, Judge 12 WE CONCUR: 13 14 JULIE J. VARGAS, Judge 15 16 KRISTINA BOGARDUS, Judge 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.