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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. A-1-CA-35127
5 JONATHAN D. OWENS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
8 J.C. Robinson, District Judge
9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 L. Helen Bennett, P.C.
14 Linda Helen Bennett
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VANZI, Judge.
1 {1} Jonathan D. Owens (Defendant) appeals his convictions for two counts of
2 attempting to commit extortion, two counts of aggravated assault with a deadly
3 weapon, and the firearm enhancements imposed on each of the aggravated assault
4 counts. This Court’s second calendar notice proposed to reverse, in part, and
5 affirm, in part. The State and Defendant both filed a memorandum in opposition to
6 this Court’s proposed disposition. Not persuaded by either, we issued a
7 memorandum opinion affirming the sufficiency of evidence to support Defendant’s
8 convictions but reversing each of the firearm enhancements. See State v. Owens,
9 No. 35,127, mem. op. (N.M. Ct. App. Mar. 7, 2017) (non-precedential). We relied
10 on State v. Branch, 2016-NMCA-071, 387 P.3d 250, opinion withdrawn and
11 superseded, 2018-NMCA-031, 417 P.3d 1141, to hold that the firearm
12 enhancement of Defendant’s sentence violated double jeopardy. See Owens, No.
13 35,127, mem. op. ¶ 2. Our Supreme Court granted a writ of certiorari on April 14,
14 2017. Order at 1, State v. Owens, No. S-1-SC-36335 (April 14, 2017). On
15 December 18, 2017—after quashing a writ of certiorari in Branch and remanding
16 to this Court for consideration of our Supreme Court’s opinion in State v. Baroz,
17 2017-NMSC-030, 404 P.3d 769, which decided issues related to whether firearm
18 enhancements on sentences for aggravated assault with a deadly weapon violated
19 double jeopardy—the Supreme Court remanded this case to our Court for
20 consideration of the same. Order at 1, Owens, No. S-1-SC-36335 (Dec. 18, 2017).
2
1 On remand, we withdraw the memorandum opinion issued on March 7, 2017, and
2 substitute this opinion in its stead.
3 {2} Defendant argues that adding the firearm enhancements to his aggravated
4 assault with a deadly weapon sentences violates double jeopardy because the use
5 of a firearm was an element of the crime of aggravated assault with a deadly
6 weapon. [Defendant MIO 1-2] However, our Supreme Court recently rejected this
7 same argument in Baroz. In Baroz, the defendant was convicted of two counts of
8 aggravated assault with a deadly weapon and sentenced to a term of eighteen
9 months, followed by one year of parole, for each conviction. 2017-NMSC-030, ¶
10 20. The district court enhanced Defendant’s sentences on these counts by one year
11 each pursuant to NMSA 1978, § 31-18-16(A) (1993), the firearm enhancement
12 statute. Baroz, 2017-NMSC-030, ¶ 20. Our Supreme Court rejected the defendant’s
13 contention that the firearm enhancement violates double jeopardy because use of a
14 firearm is an element of his charges for aggravated assault with a deadly weapon.
15 Id. The Court concluded that the Legislature intended to authorize an enhanced
16 punishment when a person uses a firearm in the commission of aggravated assault,
17 and thus, “[t]he sentence enhancement does not run afoul of double jeopardy.” Id.
18 ¶ 27.
19 {3} Given the Supreme Court’s holding in Baroz, we conclude that the firearm
20 enhancements in this case do not violate double jeopardy. We withdraw our
3
1 previous holding vacating the enhancements and instead affirm the district court’s
2 enhancements of Defendant’s two sentences for aggravated assault with a deadly
3 weapon. The rest of our holdings in our previously issued memorandum opinion,
4 as reiterated below, remain unchanged.
5 {4} This Court’s second calendar notice continued to propose affirmance on the
6 sufficiency of evidence to support Defendant’s convictions. [CN 2, 3] Defendant’s
7 second memorandum in opposition repeats the same argument that the evidence
8 presented at trial did not exclude all reasonable doubt. [Defendant MIO 3] See
9 State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003
10 (stating that a party responding to a summary calendar notice must come forward
11 and specifically point out errors of law and fact, and the repetition of earlier
12 arguments does not fulfill this requirement), superseded by statute on other
13 grounds as stated in State v. Harris, 2013-NMCA-031 ¶ 3, 297 P.3d 374. We
14 suggest that while Defendant’s testimony to the contrary, if believed by the jury,
15 could have cast doubt on the veracity of the State’s witnesses, it was the jury’s
16 duty to weigh the credibility of the witnesses and this Court does not reweigh the
17 evidence. See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482
18 (recognizing that it is for the fact-finder to resolve any conflict in the testimony of
19 the witnesses and to determine where the weight and credibility lie). Based on the
20 evidence, and “indulging all reasonable inferences and resolving all conflicts in the
3
1 evidence in favor of the verdict[,]” we conclude that the evidence presented at trial
2 was sufficient to exclude all reasonable doubt and supported Defendant’s
3 convictions. State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d
4 176; see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829
5 (stating that in determining the sufficiency of evidence, we disregard all evidence
6 and inferences that support a different result).
7 {5} This Court’s second calendar notice continued to propose that exigent
8 circumstances were established based on the evidence relied upon in the first
9 calendar notice and Defendant’s failure to dispute those facts. [CN2 4-5]
10 Specifically, we proposed to conclude that Defendant’s warrantless arrest was
11 lawfully based on both probable cause and exigent circumstances, where there was
12 evidence that the deputy received a call informing her that Defendant was pointing
13 a gun at and trying to kill two government officials on his property. [CN1 6]
14 Defendant repeats the argument but does not otherwise point to any error in fact or
15 law to persuade us that our legal conclusion is erroneous. [Defendant MIO 4] See
16 Mondragon, 1988-NMCA-027, ¶ 10.
17 {6} Next, Defendant continues to argue pursuant to State v. Franklin, 1967-
18 NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-
19 029, ¶ 24, 103 N.M. 655, 712 P.2d 1, that his numerous motions, meritorious on
20 their face, should not have been summarily dismissed without a hearing, and that
4
1 his commitment prior to trial violated NMSA 1978, Section 31-9-1.5(A) (1999),
2 because no evidentiary hearing was conducted to establish by clear and convincing
3 evidence that he committed the crimes for which he was accused. [Defendant MIO
4 6] We adhere to our conclusion that it was within the judge’s discretion to rule on
5 the motions without a hearing, given that the judge either expressly indicated no
6 hearing was necessary, as there were no facts requiring further factual development
7 [3 RP 582, 643, 663, 689, 691], or made findings analyzing the parties’ arguments.
8 [3 RP 582-92; 643-44; 663-64] See State v. Guerro, 1999-NMCA-026, ¶¶ 26-28,
9 126 N.M. 699, 974 P.2d 669 (recognizing that the district court’s refusal to hold an
10 evidentiary hearing as being within the judge’s discretion particularly where claims
11 are based on the judge’s personal observation and knowledge of the case, where
12 the party fails to state the grounds for relief, or the record contradicts the assertions
13 made). We note Defendant acknowledges that because he is no longer in custody,
14 there is no remedy for this due process claim. [Defendant MIO 6] Because
15 Defendant points to no error in fact or law, we affirm. See Mondragon, 1988-
16 NMCA-027, ¶ 10.
17 {7} For all of these reasons, and those stated in this Court’s first and second
18 calendar notices, we affirm.
19 {8} IT IS SO ORDERED.
20 _________________________________
5
1 LINDA M. VANZI, Judge
2 WE CONCUR:
3 _________________________________
4 J. MILES HANISEE, Judge
5 _________________________________
6 JULIE J. VARGAS, Judge
6