 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
 4   deviations from the official paper version filed by the Court of Appeals and does not include the
 5   filing date.
 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                          NO. 29,907

10 GERALD RAY ZUNIGA,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Lisa C. Schultz, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   M. Anne Kelly, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Susan Roth, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant


23                                 MEMORANDUM OPINION

24 BUSTAMANTE, Judge.
 1        Defendant contends the State failed to make a prima facie case showing his

 2 prior felony convictions met the timeliness test for purposes of enhancing Defendant’s

 3 sentence as a habitual offender. We issued a calendar notice proposing to agree and

 4 reverse the district court’s judgment and sentence. [RP 124] The State filed a timely

 5 memorandum in opposition, together with a motion to supplement the record.

 6 Defendant filed a response in opposition to the State’s motion to supplement.

 7 Remaining unpersuaded by the State, we reverse the district court and remand for

 8 further proceedings. We also deny the State’s motion to supplement.

 9        The question in this case is whether Defendant was serving a sentence, a period

10 of probation, or parole within ten years prior to the parole revocation. See State v.

11 Tave, 2007-NMCA-059, ¶ 12, 141 N.M. 571, 158 P.3d 1014 (holding the habitual

12 offender statute contemplates the sentencing judge will consider any prior felony

13 convictions within ten years prior to the date of the conviction for which a sentence

14 is being imposed); see also NMSA 1978, § 31-18-17(D)(1) (2003) (stating that “prior

15 felony conviction” means “a conviction, when less than ten years have passed prior

16 to the instant felony conviction since the person completed serving his sentence or

17 period of probation or parole for the prior felony, whichever is later”). “In order to

18 make a prima facie case under [NMSA 1978,] Section 31-18-17 (2003), the State must




                                             2
 1 offer proof of all three elements: identity, conviction, and timing.” State v. Simmons,

 2 2006-NMSC-044, ¶ 11, 140 N.M. 311, 142 P.3d 899.

 3        “The standard of proof for the State’s evidence is a preponderance of the

 4 evidence.” Id. ¶ 10. “The sufficiency of the evidence is reviewed with a substantial

 5 evidence standard. When we review for substantial evidence we give deference to the

 6 findings of the district court.” Id. (citation omitted). “[T]he State must make its prima

 7 facie showing, including all of the required elements for a prior felony conviction as

 8 defined by the habitual offender statute, and then the burden of proof shifts to the

 9 defendant.” Id. ¶ 13.

10          Defendant has apparently admitted both his identity and the existence of a

11 previous conviction in Alabama. [DS 3-4; MIO 3-4] Defendant therefore only

12 objects to the State’s proof of the timing of the prior felony convictions. [MIO 5]

13 Specifically, Defendant asserts the State’s presentment of a “conviction report”was

14 insufficient to establish a prima facie case as to the timeliness requirement, especially

15 as the conviction report was never entered into evidence. [DS 4] Moreover, the report

16 apparently merely indicated Defendant was to serve three years incarceration,

17 followed by one year of probation, for trafficking marijuana, but did not indicate when

18 Defendant actually completed his sentence. [Id.]




                                               3
 1        Defendant testified he completed the previous sentence on June 27, 1998,

 2 outside of the ten-year requirement. [Id.] He testified he was convicted on July 18,

 3 1998, but, at that point, had already served about 13 months and was therefore given

 4 pre-sentence confinement credit by the Alabama court. [Id.] He asserts he served an

 5 additional 23 months incarceration for a total of 3 years incarceration and any

 6 additional time on probation or parole was apparently waived for good behavior. [DS

 7 4-5]

 8        The district court did not find Defendant’s testimony credible. [MIO 8] It

 9 found the State’s presentment of the conviction report sufficient to establish a prima

10 facie case under Simmons and found Defendant’s testimony insufficient to dispute the

11 State’s claim. [DS 5; MIO 8-9] We reverse.

12        While we agree with the State that the credibility of Defendant is generally left

13 to the providence of the district court [See MIO 11], we hold the State’s presentment

14 of the conviction report, on its own, was insufficient to establish a prima facie case of

15 timeliness, as said report was never admitted into evidence. Simply put, we hold the

16 State had an obligation to introduce some evidence as to when Defendant completed

17 his sentence in Alabama.

18        While the district court may have considered and relied upon the conviction

19 report, the fact remains that it is outside the record. Because the conviction report was


                                               4
 1 neither filed below nor introduced into evidence, [DS 4] we have no way of assessing

 2 its evidentiary value or admissibility. As we stated in the companion case to this case,

 3 No. 29,906, filed January 6, 2010, we are of the opinion this is a critical deficiency,

 4 as it was the State who had the initial burden in the habitual proceedings.

 5        In the recent case of State v. Lopez, 2009-NMCA-127, 147 N.M. 364, 223 P.3d

 6 361, this Court was confronted with a similar evidentiary problem. We held “records

 7 of prior convictions must be properly admitted into the record and available for review

 8 on appeal, unless such proof is stipulated to or otherwise waived” by the defendant.

 9 Id. ¶ 43. We therefore concluded “a single, uncertified judgment and sentence . . . not

10 in the record” was insufficient to satisfy the State’s burden. Id. Although we

11 acknowledge Lopez deals with sentencing under the DWI statute rather than Section

12 31-18-17, cf. State v. Yazzie, 2009-NMCA-040, ¶ 6, 146 N.M. 115, 207 P.3d 349

13 (“The DWI sentencing statute is significantly different from the habitual offender

14 statutes.”), we are of the opinion the principle upon which Lopez is premised,

15 requiring evidence of prior convictions to be of record, is sufficiently general to

16 warrant application in the context of habitual offender proceedings as well. A s a

17 result, we hold the conviction report, the admissibility of which is unknown and the

18 contents of which are not of record, is insufficient to satisfy the State’s burden.




                                              5
 1        We also decline the State’s invitation to accept the conviction report as a

 2 supplement to the record, as it should have been offered in the district court.     In

 3 closing, we also note the Supreme Court’s observation in Simmons that the State’s

 4 burden is not onerous. Simmons, 2006-NMSC-044, ¶ 14.            As stated in that case,

 5 “even when the prior felony conviction occurred in another state, as in this case,

 6 information should be available to assist the State in proving all three elements of a

 7 prior felony conviction.” Id. “Thus, with modern technology and the public records

 8 of state corrections departments, it should not be difficult for the State to prove all

 9 three required elements of a prior felony conviction under the habitual offender

10 statute.” Id.

11        We therefore hold the district court erred in ruling the State presented a prima

12 facie showing. Less than ten years have passed since Defendant completed serving

13 his sentences, probations, or parole periods for the prior felony. Accordingly, we

14 deny the State’s motion to supplement the record and we reverse Defendant’s sentence

15 enhancement pursuant to Section 31-18-17. We remand for further proceedings in

16 accordance with this opinion.

17        IT IS SO ORDERED.

18
19                                         MICHAEL D. BUSTAMANTE, Judge

20 WE CONCUR:

                                              6
1
2 JAMES J. WECHSLER, Judge

3
4 CELIA FOY CASTILLO, Judge




                              7
