       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ____________

Filing Date: May 22, 2014

Docket No. 32,461

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

TREVOR MERHEGE,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Drew D. Tatum, District Judge

Gary K. King, Attorney General
Corinna Laszlo-Henry, Assistant Attorney General
Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Nicole Murray, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

HANISEE, Judge.

{1}    Trevor Merhege (Defendant), appeals from his conviction for criminal trespass
contrary to NMSA 1978, Section 30-14-1(B) (1995). The crime of criminal trespass is
defined in pertinent part as “knowingly entering or remaining upon the unposted lands of
another knowing that such consent to enter or remain is denied or withdrawn by the owner
or occupant thereof.” Section 30-14-1(B). Defendant asserts that there was insufficient
evidence to establish he knew that he lacked consent to enter upon the land of another.
Conversely, the State argues that there was sufficient evidence of Defendant’s knowledge,

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specifically relying on the landowner’s testimony that he had not given Defendant
permission to enter upon his land. It further contends that the principles of finality and
mootness preclude this Court from reviewing this appeal. We conclude that we have
jurisdiction to hear this appeal. Further, we agree with Defendant that the landowner’s
testimony was insufficient to establish Defendant’s knowledge and reverse his conviction.

BACKGROUND

{2}     The relevant facts are not in dispute. On the night of September 3, 2011, Officer
Adam Lem of the Portales Police Department was on routine patrol near the intersection of
Main Street and East 9th Street. Officer Lem observed Defendant and his friend walking
down East 9th Street at approximately 3:40 a.m. Officer Lem got out of his patrol car and
yelled, “Hey[,] I want to talk to you.” Defendant and his friend did not stop but instead fled
on foot around the corner onto Main Street where they proceeded to hop a fence and cut
across a private front yard belonging to Gary Watkins. Defendant’s friend scaled two fences
and jumped over to the neighboring property. Defendant attempted the same maneuver but
his clothing became entangled in a chain link fence. Officer Lem caught Defendant when he
was entangled in the chain link fence, arrested him, and charged him with resisting and
evading an officer, a misdemeanor offense. The charge was later amended to criminal
trespass.

{3}    Defendant filed a motion to suppress in the magistrate court. The magistrate court
granted Defendant’s motion and dismissed the case. The State appealed to the district court
and Defendant again filed a motion to suppress. After a hearing, the district court denied
Defendant’s motion and scheduled the matter for trial. Defendant argued that the matter
should be remanded for trial in the magistrate court. The district court rejected this argument
and proceeded with a trial.

{4}      Officer Lem and Watkins testified on behalf of the State. Watkins testified that he
had not given Defendant permission to be on his property on September 3, 2011, and had
not, as a matter of “custom or . . . habit give[n] people permission to cut across his property
at that hour” of the morning. Based upon the evidence presented, the jury found Defendant
guilty of criminal trespass.

DISCUSSION

{5}     Defendant contends the evidence was insufficient to support his conviction. Before
we consider the merits of this argument, we first consider the State’s argument that we lack
jurisdiction to consider this appeal pursuant to principles of finality and mootness.

I.     Finality/Mootness

{6}   The State contends that we lack jurisdiction to consider this appeal because
Defendant is appealing from an order of conditional discharge pursuant to NMSA 1978,

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Section 31-20-13(A) (1994). The State asserts that this is a non-final order and that this
appeal is moot because Defendant has served his term of probation and been discharged. We
disagree.

{7}     In State v. Durant, 2000-NMCA-066, ¶ 1, 129 N.M. 345, 7 P.3d 495, we discussed
whether a conditional discharge order should be considered final for purposes of appeal. We
recognized that courts in other jurisdictions have held that conditional discharge orders are
non-final when they are not accompanied by sentences and lack significant collateral
consequences. Id. ¶ 9. We drew a distinction between one defendant’s felony case, which
could be considered in subsequent habitual offender proceedings, and another defendant’s
contempt case, which lacked any collateral consequences. Id. ¶¶ 9-10. We considered the
merits of the first defendant’s case and dismissed the second defendant’s case. Id. ¶ 11.

{8}      The crime of criminal trespass is a misdemeanor, not a felony, and thus cannot be
considered as a prior felony conviction under our habitual offender statute. See § 30-14-1(E)
(defining the crime of criminal trespass as a misdemeanor); NMSA 1978, § 31-18-17(D)
(2003) (defining a prior felony conviction for purposes of habitual offender enhancement).
Defendant nevertheless contends that he is subject to significant collateral consequences as
a result of his conditional discharge. He states that he will be required to disclose the fact of
his conviction on applications for employment, college, and other future pursuits. We agree
that these are potentially significant consequences even though they are somewhat
speculative. See United States ex rel. Grundset v. Franzen, 675 F.2d 870, 873 (7th Cir. 1982)
(finding a controversy was not moot, reasoning that “[a]lthough the potential legal
disabilities facing [the defendant] as a result of his misdemeanor conviction are somewhat
more speculative than those facing a convicted felon, the possibility of a disability exists”).
We note that a contrary result would effectively immunize the proceedings at trial from
appellate review and conclude that we have jurisdiction to consider this appeal.

II.     Sufficiency of the Evidence

{9}     Turning to the merits, Defendant contends the evidence was insufficient to support
his conviction.1 In reviewing this claim, we examine the record to determine “whether
substantial evidence of either a direct or circumstantial nature exists to support a verdict of
guilt beyond a reasonable doubt with respect to every element essential to a conviction.”
State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. We “view the
evidence in the light most favorable to the state, resolving all conflicts therein and indulging


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          Defendant also contends the district court erred in failing to remand this case to the
magistrate court after reversing the magistrate court’s grant of Defendant’s motion to
suppress. However, “the district court has concurrent original jurisdiction over misdemeanor
cases, . . . and the defendant has no right to have the case heard in magistrate court[.]” State
v. Heinsen, 2005-NMSC-035, ¶ 23, 138 N.M. 441, 121 P.3d 1040. We thus reject this
argument.

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all permissible inferences therefrom in favor of the verdict.” Id.

{10} Defendant was convicted of criminal trespass contrary to Section 30-14-1(B), which
defines the crime as “knowingly entering or remaining upon the unposted lands of another
knowing that such consent to enter or remain is denied or withdrawn by the owner or
occupant thereof.” The jury was instructed that, in order to find Defendant guilty, the State
had to prove beyond a reasonable doubt that Defendant “entered property belonging to
. . . Watkins without permission” and “knew or should have known that permission to enter
had been denied[.]” Defendant contends that the State failed to present sufficient evidence
that he knew that Watkins had denied him permission to enter his land.

{11} It is undisputed that Watkins did not give Defendant permission to enter his land. It
is also undisputed that Watkins did not deny or withdraw consent to Defendant to enter his
land. The determinative question is whether we can presume, as a legal matter, that the
general public, including Defendant, had permission to enter upon Watkins’ unposted land
or whether such entry constitutes a violation of Section 30-14-1(B). In interpreting Section
30-14-1(B), “our main goal is to give effect to the Legislature’s intent.” State v. Almanzar,
2014-NMSC-001, ¶ 14, 316 P.3d 183 (alterations, internal quotation marks, and citation
omitted).

       To discern the Legislature’s intent, the Court looks first to the plain language
       of the statute, giving the words their ordinary meaning, unless the Legislature
       indicates a different one was intended. Where the language of a statute is
       clear and unambiguous, we must give effect to that language and refrain from
       further statutory interpretation.

Id. (alterations, internal quotation marks, and citations omitted).

{12} Where private land is posted with a “no trespassing” sign, a person must possess
written permission from the owner or person in control of the land in order to enter upon it.
Section 30-14-1(A). A person does not need written permission to enter upon the land of
another in the absence of a “no trespassing” sign. Section 30-14-1(B). Instead, a person is
allowed to enter upon such land unless he or she “know[s] that . . . consent to enter or remain
is denied or withdrawn by the owner or occupant thereof.” Id. The statute provides that
“[n]otice of no consent to enter shall be deemed sufficient notice to the public and evidence
to the courts, by the posting of the property at all vehicular access entry ways.” Id.

{13} In State v. Duran, we recognized that “[p]osting of property is only one way to place
an individual upon notice that he is not permitted upon another’s property.”
1998-NMCA-153, ¶ 34, 126 N.M. 60, 966 P.2d 768, abrogated on other grounds by State
v. Laguna, 1999-NMCA-152, 128 N.M. 345, 992 P.2d 896. We recognized that, even absent
any posting, there was “direct and circumstantial evidence” that the defendant in Duran
knew that he was not authorized to enter upon the property in question. 1988-NMCA-153,
¶ 34. The landowner testified that she told the defendant to “stop bothering her” and phoned

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the police on a number of occasions concerning the defendant’s entry on her property. Id.
(internal quotation marks and citation omitted)

{14} Here, there was no such evidence. Unlike the landowner in Duran, Watkins did not
place Defendant on notice that he was not permitted on his property. On the contrary,
Watkins testified that he did not know Defendant prior to the night in question and had never
communicated with him in any way. We conclude that Watkins did not deny or withdraw
consent to enter his land to Defendant.

{15} The fact that the statute specifically refers to the posting of the property at all
vehicular access entry ways as being sufficient evidence that the public does not have
consent to enter suggests that the lack of such posting reveals that the public does have
consent to enter. If Watkins had a subjective intent to limit access to his property, he had to
reasonably communicate it to the public in general or to Defendant in particular, by posting
or by some other means. Id. Absent such communication, we agree with Defendant that the
State presented insufficient evidence that Defendant knew that he lacked consent to enter
upon Watkins’ land. As a result, we reverse his conviction for criminal trespass.

CONCLUSION

{16} For the foregoing reasons, we reverse Defendant’s conviction and remand to the
district court with instructions to vacate Defendant’s conviction.

{17}   IT IS SO ORDERED.

                                               ______________________________________
                                               J. MILES HANISEE, Judge

WE CONCUR:

______________________________________
RODERICK T. KENNEDY, Chief Judge

______________________________________
CYNTHIA A. FRY, Judge




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