State v. Quiroga

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,491 5 MARCOS QUIROGA, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 Gary L. Klingman, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jorge A. Alvarado, Chief Public Defender 13 Allison H. Jaramillo, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge. 18 {1} Defendant appeals from his convictions for robbery and conspiracy to commit 19 robbery. Defendant raised three claims of error in his docketing statement: insufficient 1 evidence, cruel and unusual punishment, and improper admission of evidence. This 2 Court issued a calendar notice proposing to affirm. Defendant has filed a 3 memorandum in opposition to this Court’s notice of proposed disposition maintaining 4 that there was insufficient evidence to support his conviction. Defendant makes no 5 argument regarding our proposed summary affirmance of his remaining claims of 6 error, and those issues are therefore deemed abandoned. [MIO 7] See State v. Johnson, [7] 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (providing that when a case is 8 decided on the summary calendar, an issue is deemed abandoned where a party fails 9 to respond to the proposed disposition of the issue). Having considered Defendant’s 10 arguments with respect to the sufficiency of the evidence supporting his convictions, 11 we remain unpersuaded and affirm. 12 {2} In this Court’s calendar notice, we noted that Defendant did not challenge a 13 specific element of either of the crimes charged as unsupported by substantial 14 evidence. We also noted that there was evidence presented that Defendant enlisted the 15 help of an employee of a restaurant to forcefully take money from the manager when 16 the manager was carrying deposit bags containing $4,100 to the bank; the employee 17 informed police that it was Defendant who planned the robbery and hit the manager 18 over the head; and that Defendant then gave the employee part of the proceeds of the [2] 1 robbery. [CN 3] Based on this evidence, we proposed to conclude that there was 2 sufficient evidence to support Defendant’s convictions. 3 {3} In response, Defendant contends that there was insufficient evidence that he 4 “took the money by force or violence.” [MIO 9] Specifically, Defendant argues that, 5 because the victim “dropped the bag of money on his own as someone approached 6 him[,]” there was not evidence of force. Defendant relies on State v. Lewis, 1993- 7 NMCA-165, 116 N.M. 849 , 867 P.2d 1231 , in support of his argument. In Lewis, we 8 held that, “in order to convict for [robbery], the use or threatened use of force must be 9 the factor by which the property is removed from the victim’s possession.” Id. ¶ 9. 10 Thus, in Lewis, we held that where the property was taken via stealth—and not by 11 force—a robbery had not occurred. Id. ¶ 12. While Defendant argues that the victim’s 12 act of dropping the bag was not due to force, the bag was still within the victim’s 13 immediate possession—although on the ground—when the masked men hit the victim 14 in the head with a baseball bat resulting in significant injury. [MIO 1-2] The victim 15 then ran back into the restaurant to call the police. [MIO 2] Although Defendant 16 asserts that the victim did not see the men take the bag, there was testimony by the 17 employee that Defendant paid him for his part in the robbery. [MIO 3] This evidence 18 is sufficient to support a reasonable inference by the jury that the money was removed 19 from the immediate possession of the victim through the use of force. See State v. [3] 1 Cunningham, 2000-NMSC-009, ¶ 26 , 128 N.M. 711 , 998 P.2d 176 (“In reviewing the 2 sufficiency of the evidence, we must view the evidence in the light most favorable to 3 the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the 4 evidence in favor of the verdict.”). 5 {4} Additionally, Defendant also challenges his conviction because it “was based 6 almost entirely on the reluctant testimony of [the restaurant employee,]” asserting that 7 the testimony of an accomplice should be accepted with caution. [MIO 10] Defendant 8 cites State v. Sarracino, 1998-NMSC-022 , 125 N.M. 511 , 964 P.2d 72 , and federal 9 and out-of-state authority for this proposition. [MIO 10 (citing Warren v. State, 207 10 Ga. App. 53 , 427 S.E.2d 45 (1993), for the proposition that a defendant may not be 11 convicted on the uncorroborated testimony of an accomplice)] To the degree 12 Defendant relies on the proposition in Sarracino that “accomplice testimony is an 13 example of testimony that often should be viewed with suspicion,” see 1998-NMSC- 14 022, ¶ 14, our Supreme Court ultimately concluded in Sarracino that the weight given 15 to an accomplice’s testimony is left to the jury under New Mexico law, id. ¶ 9. While 16 our Supreme Court has recognized that in some instances it may violate a defendant’s 17 due process rights to rely on an accomplice’s testimony to support a conviction, we 18 have recognized that this occurs where the jury is presented with “inherently 19 improbable, uncorroborated testimony of an accomplice[.]”State v. Garcia, 2011- [4] 1 NMSC-003, ¶ 6, 149 N.M. 185 , 246 P.3d 1057 (citing State v. Armijo, 1931-NMSC- 2 008, 35 N.M. 533 , 2 P.2d 1075 ). Here, the State introduced evidence that police found 3 a cell phone at Defendant’s residence that demonstrated that the restaurant employee 4 was providing information to Defendant about the manager taking money to be 5 deposited at the bank. [MIO 4, 10] We therefore conclude that the principle discussed 6 in Garcia does not apply in the present case because corroborating evidence was 7 introduced. To the extent Defendant argues that the cell phone was found in a home 8 he shares with others, this is a question of the weight the jury assigned to that 9 evidence, and this Court will not reweigh evidence on appeal. See State v. Mora, [10] 1997-NMSC-060, ¶ 27 , 124 N.M. 346 , 950 P.2d 789 (“The reviewing court does not 11 weigh the evidence or substitute its judgment for that of the fact finder as long as there 12 is sufficient evidence to support the verdict.”), overruled on other grounds by Kersey 13 v. Hatch, 2010-NMSC-020 , 148 N.M. 381 , 237 P.3d 683 . 14 {5} Finally, to the extent Defendant challenges his conviction for conspiracy to 15 commit robbery on the same grounds [MIO 12], we rely on our analysis above. 16 {6} Accordingly, for the reasons stated above and in this Court’s notice of proposed 17 disposition, we affirm Defendant’s convictions for robbery and conspiracy to commit 18 robbery. 19 {7} IT IS SO ORDERED. [5] 1 _______________________________ 2 M. MONICA ZAMORA, Judge 3 WE CONCUR: 4 __________________________________ 5 MICHAEL E. VIGIL, Judge 6 __________________________________ 7 J. MILES HANISEE, Judge