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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 35,084
5 TIFFANY BROWN,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 John A. Dean Jr., District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Becca Salwin, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 SUTIN, Judge.
1 {1} Defendant Tiffany Brown appeals from her conviction pursuant to conditional
2 plea of possession of a controlled substance, fourth degree, contrary to NMSA 1978,
3 Section 30-31-23(E) (2011). [RP 86-87] In our notice of proposed disposition, we
4 proposed to summarily affirm. [CN 1, 6] Defendant filed a timely memorandum in
5 opposition and motion to amend her docketing statement, which we have duly
6 considered. Remaining unpersuaded, we affirm Defendant’s conviction.
7 Issue 1: Reasonable Suspicion for Patdown
8 {2} In her memorandum in opposition, Defendant continues to argue that the officer
9 lacked the necessary reasonable suspicion to conduct the patdown search of
10 Defendant. [MIO 5-9] As we set forth in our notice of proposed disposition, “[t]o
11 justify a frisk for weapons, an officer must have a sufficient degree of articulable
12 suspicion that the person being frisked is both armed and presently dangerous.” State
13 v. Vandenberg, 2003-NMSC-030, ¶ 22, 134 N.M. 566, 81 P.3d 19 (emphasis omitted).
14 [CN 5] We relied on facts in the docketing statement and in the district court’s
15 findings of fact from the suppression hearing to propose to conclude that Officer
16 Prince had a sufficient degree of articulable suspicion that Defendant was both armed
17 and presently dangerous when she frisked her. [CN 3-4] Specifically, the facts we
18 found pertinent were that Defendant had been identified as a person with prior contact
19 with police and was listed in the police system as dangerous [DS 2; RP 54 (¶ 3)];
2
1 when Officer Prince made contact with Defendant, she was acting strange and
2 appeared intoxicated [DS 2-3; RP 54-55 (¶ 4)]; and Defendant did not respond to
3 Officer Prince’s first two questions about whether she had weapons and, instead, kept
4 putting her hands in her pockets, despite being asked not to, and wrapped herself in
5 a blanket. [DS 3; RP 54-55 (¶¶ 4-6); CN 5-6] We proposed to conclude that this
6 evidence shows that Officer Prince had a sufficient degree of articulable suspicion that
7 Defendant was both armed and presently dangerous. [CN 6]
8 {3} In her memorandum in opposition, Defendant reiterates the facts, characterizing
9 them somewhat differently and more defense-friendly, based on the record and on
10 “correspondence with trial counsel[.]” [MIO 2-4; see also MIO 2 n.1] Defendant
11 additionally attests that she was submissive, compliant, and calm; that she seemed
12 disoriented and confused; that she was homeless and cold, explaining why she was
13 “snuggling up inside her sleeping bag under the rain”; and that her finger tips were
14 visible as she gripped her sleeping bag around her. [MIO 3-4] Defendant also
15 contends the district court was concerned with the officer’s purportedly confusing,
16 incomplete, and at times self-contradictory testimony. [MIO 4]
17 {4} However, it is well settled that it is for the fact-finder to determine where the
18 weight and credibility lie, which the district court did as set forth in its findings of fact
19 and conclusions of law, and we do not re-weigh the evidence on appeal or substitute
3
1 our judgment for that of the fact-finder. [RP 54-55] See State v. Salas, 1999-NMCA-
2 099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder to
3 resolve any conflict in the testimony of the witnesses and to determine where the
4 weight and credibility lie); see also State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M.
5 689, 866 P.2d 1156 (“[An appellate court] does not weigh the evidence and may not
6 substitute its judgment for that of the fact[-]finder so long as there is sufficient
7 evidence to support the verdict.” (internal quotation marks and citation omitted)).
8 Moreover, despite Defendant’s characterization in her memorandum in opposition, the
9 district court was not required to accept her version of the facts. See State v. Rojo,
10 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“[T]he jury is free to reject [the
11 d]efendant’s version of the facts.”).
12 {5} Defendant additionally analogizes the present case with other cases that
13 ultimately found that a slow response, bulky clothes, or fully concealed hands did not
14 justify a frisk. [MIO 6] However, the cases are inapposite. As set forth by Defendant,
15 in State v. Jason L., 2000-NMSC-018, ¶¶ 3-4, 129 N.M. 119, 2 P.3d 856, the
16 defendant was wearing a bulky coat in July, nervously fidgeted his hands around his
17 hip under his coat, and at first ignored the officer’s repeated questions about whether
18 he had any weapons. [MIO 6] However, in that case, no relevant activity had been
19 reported in the area that evening, the defendant was not listed in the system as a
4
1 person with prior contact with police or listed in the police system as dangerous, and
2 there is no evidence that, after the officers made contact, the defendant kept putting
3 his hands in his pockets, despite being asked not to, or wrapping himself in a blanket.
4 See id. We are therefore unpersuaded that the Court’s conclusion in Jason L. that there
5 was not sufficient evidence that the officers’ suspicion of the defendant was
6 reasonable, see id. ¶ 23, changes the result in the present case.
7 {6} Defendant also cites to State v. Gutierrez, 2008-NMCA-015, 143 N.M. 522,
8 177 P.3d 1096. [MIO 7] In Gutierrez, the defendant was carrying a pair of pants over
9 his left arm, acted nervously when the officers approached him, backed away from the
10 officers, and moved his left hand to his hip area. Id. ¶¶ 2-3. However, in that case,
11 there is no indication that there was evidence of a call based on an “unwanted person,”
12 that the defendant was listed in the system as a person with prior contact with police
13 or listed in the police system as dangerous, or that, after the officers made contact, the
14 defendant put his hand in his pockets, despite being asked not to, or wrapping himself
15 in a blanket. See id. We are therefore similarly unpersuaded that the Court’s
16 conclusion in Gutierrez that there was not sufficient evidence that the officers’
17 suspicion of the defendant was reasonable, see id. ¶¶ 17-20, changes the result in the
18 present case.
5
1 {7} Defendant additionally cites to State v. Boblick, 2004-NMCA-078, 135 N.M.
2 754, 93 P.3d 775. [MIO 7-8] In Boblick, the officers were dispatched regarding a
3 suspicious car, the defendant appeared dazed and did not respond verbally to the
4 officers but complied with their requests, and a check revealed no information about
5 the defendant. Id. ¶ 13. Again, in that case, there is no indication that there was
6 evidence of a call based on an “unwanted person,” that the defendant was listed in the
7 system as a person with prior contact with police or listed in the police system as
8 dangerous, or that, after the officers made contact, the defendant put his hand in his
9 pockets, despite being asked not to, or wrapping himself in a blanket. See id. In fact,
10 one officer in Boblick testified that his only rationale for searching the defendant was
11 because “he considers any person with whom he comes into contact to be an unknown
12 threat.” Id. This Court concluded that, “[a]lthough this may be a prudent assumption,
13 this assumption alone cannot justify a patdown.” Id. Again, based on the facts, we are
14 unpersuaded that the Court’s conclusion in Boblick that there was not sufficient
15 evidence that the officers’ suspicion of the defendant was reasonable, see id., changes
16 the result in the present case.
17 {8} Finally, Defendant argues that the fact that she was identified as “a safety
18 concern” should not impact the decision to frisk her. [MIO 8-9] However, whether a
19 notation in the system that a defendant is “a safety concern,” on its own, may be
6
1 insufficient to justify a frisk is not the issue in this case. As our Supreme Court
2 indicated in Vandenberg, we consider the totality of the circumstances regarding
3 whether a suspect is reasonably deemed armed and dangerous. 2003-NMSC-030, ¶ 22.
4 Moreover, in determining whether a frisk is warranted, “the officer need not be
5 absolutely certain that the individual is armed; the issue is whether a reasonably
6 prudent officer in the circumstances would be warranted in the belief that his safety
7 or that of others was in danger.” Id. ¶ 23 (alterations, internal quotation marks, and
8 citation omitted). Based on the evidence in the present case—that Defendant had been
9 identified as a person with prior contact with police and was listed in the police system
10 as dangerous; that, when Officer Prince made contact with Defendant, she was acting
11 strange and appeared intoxicated; and that Defendant did not respond to Officer
12 Prince’s first two questions about whether she had weapons and, instead, kept putting
13 her hands in her pockets, despite being asked not to, and wrapped herself in a
14 blanket—we hold that a reasonably prudent officer in these circumstances would be
15 warranted in the belief that his or her safety or that of others was in danger. See id.
16 Accordingly, we conclude that the district court did not err in so concluding. [RP 55
17 (¶ 2)]
18 Issue 2: Reasonable Suspicion for Detention
7
1 {9} In her memorandum in opposition, Defendant also continues to argue that the
2 officer lacked the necessary reasonable suspicion to detain Defendant. [MIO 9-11] As
3 we set forth in our notice of proposed disposition, “[a]n officer may stop and detain
4 a citizen if the officer has a reasonable and articulable suspicion that the person
5 stopped is or has been involved in criminal activity.” State v. Murry, 2014-NMCA-
6 021, ¶ 29, 318 P.3d 180 (alteration, internal quotation marks, and citation omitted).
7 [CN 2] “The critical question . . . is whether the officer had an individualized
8 suspicion that the defendant[ was] violating any law when he [or she] subjected the
9 defendant[] to detention.” Id. (omission in original) (alterations, internal quotation
10 marks, and citation omitted).
11 {10} In our notice of proposed disposition, we again relied on facts in the docketing
12 statement and in the district court’s findings of fact from the suppression hearing to
13 propose to conclude that Officer Prince had reasonable suspicion that Defendant had
14 committed or was committing the crime of trespass. [CN 3-5] Specifically, the facts
15 we found pertinent were that, on the date in question, Officer Prince was dispatched
16 to address an “unwanted person” who was reported to have been walking around
17 outside of a residence, and when Officer Prince arrived on the scene, she ultimately
18 found Defendant walking near a residence, acting strange and appearing intoxicated.
19 [DS 2-3; RP 54-55; CN 3-5] We proposed to conclude that this evidence was
8
1 sufficient to provide an officer with reasonable suspicion that Defendant had
2 committed or was committing the crime of trespass. [CN 5] In her memorandum in
3 opposition, Defendant reiterates the facts, but again characterizes them
4 differently—more defense-friendly. [MIO 2-4, 10-11; see also MIO 2 n.1] Defendant
5 also argues that “any such suspicion was dispelled when the officer arrived to the
6 location of the call[] and found a number of people who all said they had not seen
7 [Defendant] or a possible trespass.” [MIO 10-11]
8 {11} However, as we have stated earlier in this Opinion, it is for the fact-finder to
9 determine where the weight and credibility lie, and we do not re-weigh the evidence
10 on appeal or substitute our judgment for that of the fact-finder. See Griffin, 1993-
11 NMSC-071, ¶ 17; Salas, 1999-NMCA-099, ¶ 13. Indeed, although the officer spoke
12 to some people who had not seen Defendant or a trespass [MIO 10-11], the officer
13 may have nevertheless concluded that a trespass was occurring outside of the
14 awareness of those “people[,] who appeared to be influenced by drugs.” [MIO 3] As
15 indicated earlier, the district court was not required to accept Defendant’s version of
16 the facts. See Rojo, 1999-NMSC-001, ¶ 19. Based on the evidence in the present
17 case—that Officer Prince was dispatched regarding an “unwanted person” who was
18 reported to have been walking around outside of a residence, and when Officer Prince
19 arrived on the scene, she ultimately found Defendant walking near a residence, acting
9
1 strange and appearing intoxicated—we hold that Officer Prince had reasonable
2 suspicion that Defendant had committed or was committing trespass when she
3 subjected Defendant to detention. See Murry, 2014-NMCA-021, ¶ 29. Accordingly,
4 we conclude that the district court did not err in so concluding.
5 Issue 3: Due Process
6 {12} Finally, Defendant requests leave to amend her docketing statement to add the
7 following issue: that Defendant was denied a fair suppression hearing when the State
8 withheld the only officer’s lapel video—the best direct and impeachment evidence of
9 Defendant’s unlawful arrest—until after the suppression hearing was over. [MIO 11-
10 13] This issue was not preserved so Defendant raises it pursuant to the doctrine of
11 fundamental error. [MIO 11] However, Defendant does not explain what the lapel
12 video shows or how it actually undermines the officer’s testimony. [MIO 12-13]
13 Rather, Defendant only contends that the officer’s testimony was the only evidence
14 proffered at the hearing and that the video “would have firmly established that the
15 officer acted unlawfully[] and impeached the officer’s claims[.]” [MIO 12] These
16 statements are unsupported by any explanation as to how it would have established the
17 officer acted unlawfully or how it would have impeached the officer’s claims. Thus,
18 even assuming without deciding that the State’s failure to provide the lapel video prior
19 to the suppression hearing was error, Defendant has failed to show that there is a
10
1 reasonable probability that, had the video been disclosed, the result of the proceeding
2 would have been different. See State v. Romero, 2013-NMCA-101, ¶ 15, 311 P.3d
3 1205 (reiterating that “[e]vidence is material under Brady [v. Maryland, 373 U.S. 83
4 (1963),] only if there is a reasonable probability that, had the evidence been disclosed
5 to the defense, the result of the proceeding would have been different” and concluding
6 that, lacking materiality, the evidence is not deemed to be “tainted with fundamental
7 unfairness” (alteration, internal quotation marks, and citations omitted)).
8 {13} Thus, to the degree any error exists, we conclude that it does not rise to the level
9 of fundamental error. See State v. Barber, 2004-NMSC-019, ¶¶ 8, 14, 135 N.M. 621,
10 92 P.3d 633 (stating that the “doctrine of fundamental error applies only under
11 exceptional circumstances and only to prevent a miscarriage of justice” and “is to be
12 resorted to in criminal cases only for the protection of those whose innocence appears
13 indisputably[] or open to such question that it would shock the conscience to permit
14 the conviction to stand” (internal quotation marks and citation omitted)). We therefore
15 deny Defendant’s motion to amend the docketing statement as non-viable. See State
16 v. Moore, 1989-NMCA-073, ¶¶ 42, 45, 109 N.M. 119, 782 P.2d 91 (stating that a
17 viable issue must be colorable or arguable and that “we should deny motions to amend
18 that raise issues that are not viable”), superseded by rule on other grounds as stated
19 in State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730; cf. State v.
11
1 Sommer, 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878 P.2d 1007 (denying a motion to
2 amend the docketing statement based upon a determination that the argument sought
3 to be raised was not viable). Nonetheless, we note, as we did in Romero, that,
4 “[a]lthough . . . [the d]efendant’s request in this regard was tardy, . . . the [s]tate is
5 obligated to make a reasonably diligent effort to comply with a legally proper
6 discovery request and may not obstruct another party’s access to evidence.” 2003-
7 NMCA-101, ¶ 18 (internal quotation marks and citation omitted).
8 {14} Accordingly, for the reasons stated in our notice of proposed disposition and
9 herein, we affirm Defendant’s conviction.
10 {15} IT IS SO ORDERED.
11 __________________________________
12 JONATHAN B. SUTIN, Judge
13 WE CONCUR:
14 _______________________________
15 JAMES J. WECHSLER, Judge
16 _______________________________
17 M. MONICA ZAMORA, Judge
12