State v. Barela, A-1-CA-34945

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOE RAY BARELA, Defendant-Appellant.

No. A-1-CA-34945

COURT OF APPEALS OF THE STATE OF NEW MEXICO

September 4, 2018

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Laurie K. Blevins, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

J.K. Theodosia Johnson, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

VIGIL, Judge.

{1} Defendant Joe Ray Barela was found guilty by a jury of one count of auto burglary, one count of robbery, one count of tampering with evidence, one count of fraudulent use of an illegally obtained credit card (over $250 but less than $500), conspiracy to commit fraudulent signing of credit card or sales slips, two counts of possession of methamphetamine, one count of possession of drug paraphernalia, and one count of possession of marijuana.

{2} Defendant appeals, making six arguments: (1) the evidence was insufficient to support his convictions for tampering with evidence, robbery, and auto burglary; (2) the jury was not instructed on all of the essential elements for conspiracy to commit fraudulent signing of a credit card or sales slips; (3) the district court erred in admitting into evidence: (a) a Walmart receipt and testimony indicating Victim's credit card number and showing the alleged fraudulent credit card transaction, and (b) narrative testimony about what was depicted in a surveillance video; (4) his convictions for (a) two counts of possession of methamphetamine, and (b) robbery and auto burglary violate double jeopardy; (5) his right to confront witnesses against him was violated when the prosecutor elicited testimony about Detective Perea's interview with the other suspect who is Defendant's mother; and (6) his sentencing hearing was tainted by inadmissible evidence and his sentence constitutes cruel and unusual punishment. We affirm in part and reverse in part.

BACKGROUND

{3} As Victim sat in her vehicle parked in the driveway of her home, a "young man" later identified as Defendant, reached into her open car door and took her purse. Approximately an hour later, Defendant and his mother used Victim's credit card to purchase some jewelry from Walmart. Defendant and his mother returned to the Walmart two days later and attempted to return the jewelry with the original purchase receipt. Defendant and his mother were arrested by Walmart field officers, taken to the Albuquerque Police Department station, and interviewed by Detective Perea, who was investigating the robbery. Detective Perea also obtained a search warrant for Defendant's vehicle, in which methamphetamine and marijuana were found. Jewelry purchased from Walmart with Victim's credit card was also recovered from Defendant. We discuss additional facts as necessary to address Defendant's arguments on appeal.

DISCUSSION

I. Sufficiency of the Evidence

{4} Defendant argues that the evidence was insufficient to support his convictions for auto burglary, robbery, and tampering with evidence. We disagree.

{5} In reviewing a defendant's challenge to the sufficiency of evidence, the appellate courts "view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Carrillo, 2017-NMSC-023, ¶ 42, 399 P.3d 367 (internal quotation marks and citation omitted). The central consideration in a sufficiency of the evidence review is whether substantial direct or circumstantial evidence exists to support a verdict beyond a reasonable doubt as to all essential elements of the crimes for which the defendant was convicted. State v. Suazo, 2017-NMSC-011, ¶ 32, 390 P.3d 674. In jury trials, the jury instructions are the law of the case against which the sufficiency of the evidence supporting the jury's verdict is to be measured. State v. Duttle, 2017-NMCA-001, ¶ 18, 387 P.3d 885.

A. Auto Burglary

{6} Defendant contends that the State's evidence failed to prove auto burglary because Victim's car door was open when he reached in to take her purse. The jury was instructed, in pertinent part that to find Defendant guilty of auto burglary, the State was required to prove to its satisfaction beyond a reasonable doubt that Defendant "entered a vehicle without authorization[.]"

{7} The evidence was that as Victim sat inside her car in her driveway, a "young man" later identified as Defendant reached into Victim's car through her open door, across her seat, and took her purse. Victim did not give Defendant permission to reach into her vehicle. This evidence was sufficient to establish an unlawful entry into Victim's car notwithstanding that the door was open. See State v. Office of the Pub. Def. ex rel. Muqqddin, 2012-NMSC-029, ¶ 48, 285 P.3d 622 ("[A] burglary can be committed through an open window.").

B. Robbery

{8} Defendant contends that the State's evidence failed to prove that Defendant took Victim's purse by threat of force because Victim testified that by the time Defendant grabbed her purse, she "had no time to be afraid." The jury was instructed in pertinent part that to find Defendant guilty of robbery, the State was required to prove to its satisfaction beyond a reasonable doubt that Defendant took Victim's purse "by threatened force or violence[.]" The evidence was that as Defendant reached into Victim's car to take her purse, he told her, "Just give me your purse and you won't get hurt." Under our standard of review, this was substantial evidence that Defendant took Victim's purse by threatened force or violence.

C. Tampering with Evidence

{9} Defendant contends that the State's evidence failed to prove that Defendant took an overt act to disrupt an investigatory process.

{10} The jury was instructed in pertinent part that to find Defendant guilty of tampering with evidence, the State was required to prove to its satisfaction beyond a reasonable doubt that Defendant "hid or reversed a vehicle to conceal a license plate[,]" and that Defendant "intended to prevent the apprehension, prosecution or conviction of [Defendant] to create the false impression that another had committed a crime."

{11} The evidence was that as Defendant arrived at Victim's home, he pulled his vehicle over on the side of the street, blocking Victim's car, without pulling into Victim's driveway. After taking Victim's purse, Defendant got back in his vehicle and drove in reverse "all the way down the street and out of sight." Victim testified that she "got out of the car, and I thought well, I will get his license plate number[.]" However, because the license plate on Defendant's vehicle was located on the back of the vehicle, as is the case for all vehicles registered in New Mexico, Victim could not see the license plate number as he fled.

{12} We agree with the State that Defendant's conduct in fleeing the scene in this way "require[d] deliberate steps: putting the vehicle into reverse; looking at the rear view mirrors and out the back window; maintaining a straight course in reverse to avoid swerving off the roadway. Anyone who has ever driven understands it is impossible to drive backwards accidently." Further, considering the placement of the license plate on the back of his vehicle, Defendant's fleeing of the scene of the purse snatching by backing all the way down the street until he was out of sight was consistent with an attempt to prevent Victim and law enforcement from being able to identify and apprehend him.

{13} This evidence supports a jury finding that by these overt acts, Defendant intended to prevent his apprehension, prosecution, conviction, or to create the false impression that another had snatched Victim's purse. See State v. Schwartz, 2014-NMCA-066, ¶ 35, 327 P.3d 1108 ("Tampering with evidence is a specific intent crime, requiring sufficient evidence from which the jury can infer that the defendant acted with an intent to prevent apprehension, prosecution, or conviction of any person or to throw suspicion of the commission of a crime upon another." (internal quotation marks and citations omitted)); see also State v. Garcia, 2011-NMSC-003, ¶ 13, 149 N.M. 185, 246 P.3d 1057 (stating that when there is no other evidence of the specific intent to disrupt the police investigation, intent is often inferred from an overt act of the defendant).

II. Jury Instruction on Conspiracy

{14} The Use Note to the Uniform Jury Instruction on conspiracy, UJI 14-2810 NMRA, requires that in addition to the essential elements of conspiracy, the essential elements of the underlying felony must be included in the instructions to the jury. Because the essential elements for fraudulent signing of a credit card or sales slip were not given to the jury, Defendant contends, and the State concedes, that his conviction for conspiracy to commit fraudulent signing of a credit card or sales slip must be reversed. We agree.

{15} "This Court . . . is not bound by the [s]tate's concession and we conduct our own analysis." State v. Caldwell, 2008-NMCA-049, ¶ 8, 143 N.M. 792, 182 P.3d 775. Defendant failed to object to the district court's failure to include in the instructions given to the jury an instruction containing the essential elements of fraudulent signing of a credit card or sales slips. We therefore review Defendant's challenge for fundamental error. See State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating that when the error in jury instructions has not been preserved,...