 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date: June 30, 2015

 4 NO. 32,564

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 MANUEL FERNANDEZ,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
11 Sarah C. Backus, District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   Jane A. Bernstein, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17 Jorge A. Alvarado, Chief Public Defender
18 J. K. Theodosia Johnson, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant
 1                                      OPINION

 2 FRY, Judge.

 3   {1}   Defendant appeals from his conviction for criminal damage to property valued

 4 in excess of $1000 on the ground of insufficiency of the evidence. He also appeals

 5 from his sentencing as a habitual offender, arguing that the State made no prima facie

 6 showing of three prior usable felonies. We agree that the evidence for Defendant’s

 7 felony conviction was insufficient and therefore reverse.

 8 BACKGROUND

 9   {2}   On December 5, 2010, David Satrun, the victim, encountered a green Dodge

10 Durango driving erratically and aggressively. The driver of the Durango, later

11 identified as Defendant, passed Satrun more than once before getting out of his

12 vehicle to yell at Satrun and kick Satrun’s door. Satrun drove away, but Defendant

13 followed and struck the back of Satrun’s vehicle with his Durango. Defendant then

14 pulled up alongside Satrun’s door, pinning it shut. Satrun again drove away from

15 Defendant to a gas station, where he called the police. At the time of the accident,

16 Satrun was driving a 1998 white GMC pickup.

17   {3}   Defendant was eventually arrested and charged with seven counts: aggravated

18 assault with a deadly weapon (Counts 1 and 2); criminal damage to property in excess

19 of $1000 (Count 3); driving with a suspended license (Count 4); leaving the scene of
 1 an accident (Counts 5 and 6); and concealing identity (Count 7). He was convicted

 2 on Counts 3, 5, 6, and 7, and sentenced as a habitual offender on the ground that he

 3 had three usable prior felonies. Defendant appeals on two grounds: (1) the evidence

 4 was insufficient to prove the amount of property damage to Satrun’s pickup, making

 5 Count 3 unsustainable; and (2) the enhanced sentence was not legal because the State

 6 did not provide adequate proof that the out-of-state felony conviction used during

 7 sentencing was actually his.

 8 DISCUSSION

 9   {4}   We review claims as to the sufficiency of the evidence “in the light most

10 favorable to the guilty verdict, indulging all reasonable inferences and resolving all

11 conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-

12 009, ¶ 26, 128 N.M. 711, 998 P.2d 176. However, we must also determine whether

13 substantial evidence exists “and supports a verdict of guilt beyond a reasonable doubt

14 with respect to every element essential for conviction.” State v. Kent, 2006-NMCA

15 134, ¶ 10, 140 N.M. 606, 145 P.3d 86. If the evidence presented “must be buttressed

16 by surmise and conjecture, rather than logical inference[,]” it will not be sufficient to

17 support a conviction. State v. Vigil, 1975-NMSC-013, ¶ 12, 87 N.M. 345, 533 P.2d

18 578 (internal quotation marks and citation omitted). In making this determination, we

19 do not in any way “substitute [our] judgment for that of the factfinder.” State v. Mora,


                                               2
 1 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogation on other grounds

 2 recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.

 3   {5}   To convict Defendant of felony criminal damage to property, the State was

 4 required to prove beyond a reasonable doubt both that Defendant intentionally

 5 damaged the property of another and that the amount of damage exceeded $1000. See

 6 NMSA 1978, § 30-15-1 (1963); UJI 14-1501 NMRA. In accordance with UJI 14-

 7 1510 NMRA, the “amount of damage” is defined as:

 8         the difference between the price at which the property could ordinarily
 9         be bought or sold prior to the damage and the price at which the
10         property could be bought or sold after the damage. If the cost of repair
11         of the damaged property exceeds the replacement cost of the property,
12         the value of the damaged property is the replacement cost.

13   {6}   During the trial, the State offered substantial evidence of damage to Satrun’s

14 pickup, including several photographs of the truck taken by a sheriff’s deputy. Satrun

15 testified to further explain the damage, claiming that his back bumper was

16 “destroyed,” his tailgate misaligned, and that Defendant’s kick to his front door left

17 a severe dent. He admitted that some of the damage pictured had been incurred during

18 previous accidents. All told, Satrun testified that the cost to repair the damage

19 Defendant inflicted was about $1500 or $1600.

20   {7}   Defendant does not dispute that the cost of repair was over $1000, but he

21 argues that “the mere cost of repair was insufficient—the State had to prove that the


                                               3
 1 cost of replacement was not less than the cost of repair.” The State did not offer

 2 testimony as to the condition of the pickup, its mileage, or its likely replacement cost,

 3 arguing that “there is no absolute requirement” that it do so.

 4   {8}   The instruction UJI 14-1510 provides two ways of determining the amount of

 5 damage: “diminution in value” and “cost of repair.” State v. Barreras, 2007-NMCA-

 6 067, ¶¶ 5-6, 141 N.M. 653, 159 P.3d 1138. The first method, “diminution in value,”

 7 is the “before[-]and[-]after value” of the property. Id. ¶ 5. The second method, at issue

 8 here, is the “cost of repair.” In Barreras, the defendant used a tire iron to damage a

 9 one-year-old Cadillac Escalade that was previously in good condition. Id. ¶ 2. The

10 cost to repair the damage was $5100, but the State offered no specific evidence as to

11 replacement cost. Id. ¶¶ 2, 8. The defendant argued on appeal that “to prove the

12 amount of damages under the second method, the State must present evidence of both

13 the cost of repair and the cost of replacement so that the jury can compare them to

14 determine if the cost of repair exceeds the replacement cost.” Id. ¶ 8. We rejected that

15 argument for two reasons: (1) the defendant did not “seriously place in dispute on

16 appeal” whether the replacement cost exceeded the cost of repair; and (2) the

17 “average juror” would be aware that the replacement cost of the Cadillac would be

18 higher than the cost of repair. Id. ¶ 9. We reasoned that “if the cost of repair does not

19 exceed the replacement cost of the property, then the cost of repair is the value used


                                               4
 1 to determine the amount of damage.” Id. ¶ 6. Because the jurors “would know that

 2 such a high-end sport utility vehicle has a replacement cost well over $5100[,]” the

 3 cost of repair was the appropriate value to use. Id. ¶ 9.

 4   {9}    As we noted in Barreras, however, “[e]vidence of replacement cost may be

 5 necessary where the vehicle is older and/or made by a lesser-named manufacturer”

 6 than the one-year-old Cadillac at issue in that case. Id. ¶ 9. As our Supreme Court has

 7 recently affirmed, the amount of damage is “the cost of repair or replacement,

 8 whichever is less.” State v. Cobrera, 2013-NMSC-012, ¶ 8, 300 P.3d 729 (emphasis

 9 added). In some cases, as in Barreras, the facts may clearly establish that the

10 replacement cost would exceed the cost of repair and no additional evidence or

11 testimony may be required; nonetheless, the replacement cost remains part of the

12 State’s burden. Id.; Barreras, 2007-NMCA-067, ¶ 9.

13   {10}   In the present case, the “average juror” had no basis upon which to determine

14 that the replacement cost of Satrun’s pickup truck, which was over a decade old and

15 had noticeable preexisting damage, would be “well over” the $1500 cost of repair.

16 Barreras, 2007-NMCA-067, ¶ 9. The State observes that the jury was given

17 “photographs of [Satrun’s] stricken truck” in addition to the testimony regarding the

18 cost of repair, but the photographs included evidence of unrelated cosmetic damage,

19 dirt, and general wear. Without further information regarding the pickup, such as its


                                              5
 1 mileage, the photographs could not provide a sufficient basis for concluding that the

 2 replacement cost would be greater than the cost of repair. Exactly as contemplated in

 3 Barreras, this case required the State to submit evidence as to such replacement cost

 4 so that the jury could reasonably determine whether it exceeded the cost of repair or

 5 not. 2007-NMCA-067, ¶ 9.

 6   {11}   The State suggests that Defendant waived the issue of the pickup’s proper

 7 valuation when he failed to cross-examine the State’s witnesses on the replacement

 8 cost. Because this is not an affirmative defense but rather a matter of the State’s own

 9 burden, Defendant bore no obligation to offer or contest evidence that the State itself

10 did not present. State v. Munoz, 1998-NMSC-041, ¶ 15, 126 N.M. 371, 970 P.2d 143.

11 Furthermore, whatever his strategy in cross-examination, Defendant has “seriously

12 place[d] in dispute on appeal” that the pickup was worth the $1,500 cost of repair,

13 given its age, previous damage, unknown mileage, and unknown mechanical

14 condition. Barreras, 2007-NMCA-067, ¶ 9.

15   {12}   This case is therefore distinguishable from Barreras and, by refusing to offer

16 evidence regarding replacement cost, the State has failed to meet its burden for felony

17 property damage beyond a reasonable doubt.

18   {13}   In some cases, “appellate courts have the authority to remand a case for entry

19 of judgment on the lesser included offense and resentencing rather than retrial when


                                               6
 1 the evidence does not support the offense for which the defendant was convicted but

 2 does support a lesser included offense.” State v. Haynie, 1994-NMSC-001, ¶ 4, 116

 3 N.M. 746, 867 P.2d 416. The “direct remand” rule does not apply, however, in cases

 4 in which the jury was not instructed on a lesser included offense. State v. Villa, 2004-

 5 NMSC-031, ¶¶ 9, 12, 136 N.M. 367, 98 P.3d 1017.

 6   {14}   Here, the jury was not instructed on lesser-included offenses, such as

 7 misdemeanor property damage amounting to less than $1000. When the State only

 8 instructs on the greater offense, we will not second-guess its “all-or-nothing trial

 9 strategy,” id. ¶ 14, because to convict Defendant of an offense with which the jury

10 was never presented would deprive him of notice and be inconsistent with our law.

11 State v. Slade, 2014-NMCA-088, ¶ 38, 331 P.3d 930. Therefore, we will not remand

12 for resentencing Defendant for misdemeanor property damage where the evidence is

13 insufficient to demonstrate the requisite amount of damages for a felony conviction.

14 CONCLUSION

15   {15}   For the reasons stated above, we reverse Defendant’s conviction as to Count

16 3, for criminal damage to property valued in excess of $1000. Because all the

17 remaining counts of which Defendant was convicted are misdemeanors, the habitual

18 sentencing enhancement is no longer at issue. See NMSA 1978, § 31-18-17(A) (2003)




                                              7
1 (applying to “[a] person convicted of a noncapital felony” who has one or more prior

2 felony convictions).

3   {16}   IT IS SO ORDERED.


4                                        ___________________________________
5                                        CYNTHIA A. FRY, Judge


6 WE CONCUR:


7 ____________________________
8 JAMES J. WECHSLER, Judge


 9 ____________________________
10 RODERICK KENNEDY, Judge




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