 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 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
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 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. 29,903

10 JESSE GRAJEDA,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
13 Freddie J. Romero, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Law Works L.L.C.
18 John McCall
19 Albuquerque, NM

20 for Appellant


21                                 MEMORANDUM OPINION

22 BUSTAMANTE, Judge.

23          Defendant appeals his conviction for non-residential burglary. We proposed
 1 to affirm in a calendar notice. Defendant has responded with a memorandum in

 2 opposition and a motion to amend the docketing statement. We have duly considered

 3 Defendant’s arguments, but we are not persuaded by them. We deny the motion to

 4 amend the docketing statement and affirm Defendant’s conviction.

 5 Motion to Amend

 6          Defendant asks to amend the docketing statement to include a claim that it was

 7 error for the district court to not instruct the jury on notice and unauthorized entry.

 8 [MIO 10] Because Defendant did not raise this issue below, he argues that the

 9 omission of an instruction on notice and unauthorized entry amounted to fundamental

10 error.

11          The jury was instructed on the elements of burglary, requiring that the jury find

12 that Defendant entered the market without authorization, and entered the market with

13 the intent to commit a theft while inside the market. [RP 61] The jury was also

14 instructed that, in addition to the other elements of burglary, the State was required to

15 prove that Defendant acted intentionally in that he purposely did “an act which the law

16 declares to be a crime, even though he may not know that his act is unlawful.” [RP

17 62] The jury was informed that it could infer an intentional act from the surrounding

18 circumstances, including the manner in which he acts, the means used, and conduct

19 and statements of Defendant. [Id.]


                                                2
 1        Defendant argues that this was insufficient to instruct the jury on his “mental

 2 state as to the element of permission to enter” the market. [MIO 19] Defendant was

 3 served with a “no trespass” notice on June 24, 2004, providing that permission for

 4 Defendant to enter any Farmers Market was withdrawn. [RP 19-20] Defendant

 5 claimed that he had been into the market several times during 2008. On August 4,

 6 2008, Defendant entered the market, hid $50 worth of meat in his pants, and left the

 7 market. Defendant claimed that, because he had been in the market several times

 8 during 2008, he believed that the “no trespass” notice was no longer in effect.

 9 Defendant also points out that store personnel testified that the “no trespass” policy

10 was not regularly enforced. [Id. 20]

11        In State v. Rubio, 1999-NMCA-018, 126 N.M. 579, 973 P.2d 256 (filed 1998),

12 we were also presented with the argument that the burglary instruction refers to “entry

13 without permission” while the burglary statute refers to “unauthorized entry.” In

14 Rubio, the defendant claimed that he had a legal right to enter the structure in

15 question, a claim that we ultimately decided as a question of law. Id. ¶¶ 8-9. We held

16 that the idea of “permission” “captures most conduct that would contravene the

17 statute,” and we determined that, under the facts of the case it was not error to instruct

18 on “entry without permission” and not on “unauthorized entry.” Id. ¶¶ 7, 16. In this

19 case, Defendant knew that he was denied permission to enter the market but, at the


                                               3
 1 time he entered the market and took the meat, he believed that he was allowed to enter

 2 the market. [RP 137]; cf. State v. Tower, 2002-NMCA-109, ¶ 5, 133 N.M. 32, 59

 3 P.3d 1264 (holding that a defendant who entered a store after permission to enter had

 4 been revoked was unauthorized to enter the store as prohibited by the burglary

 5 statute). Defendant’s testimony was presented to the jury, but the jury rejected

 6 Defendant’s claim that he believed the “no trespass” notice was no longer in effect.

 7 The jury, as fact finder in the case, could disbelieve Defendant’s claim. See State v.

 8 Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (filed 1998). Based on our

 9 case law, the jury’s fact finding role, and the circumstances of this case, the jury

10 instructions were proper. We hold that the issue included in Defendant’s motion to

11 amend his docketing statement is not viable. See State v. Moore, 109 N.M. 119, 129,

12 782 P.2d 91, 101 (Ct. App. 1989), overruled on other grounds by State v. Salgado,

13 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991). Therefore, we deny the motion.

14 Directed Verdict/Sufficiency of Evidence

15        Defendant continues to claim that it was error to deny his motion for directed

16 verdict and that the evidence was insufficient to support his conviction for burglary.

17 As discussed in our calendar notice, a motion for directed verdict also challenges the

18 sufficiency of the evidence. On review of the sufficiency of the evidence, we view the

19 evidence in the light most favorable to a verdict of guilty while indulging all


                                             4
 1 reasonable inferences and resolving all conflicts in the evidence in favor of the guilty

 2 verdict. See State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d

 3 176. The evidence presented at trial established that Defendant was denied permission

 4 to enter the market, and that he entered the market and placed meat into his pants

 5 before exiting several minutes later. This was sufficient to prove that Defendant

 6 committed the crime of non-residential burglary.

 7 Motion for New Trial

 8        Defendant continues to argue that it was an abuse of the district court’s

 9 discretion to deny his motion for new trial. The motion for new trial was based on

10 Defendant’s claim that he was under the influence of heroin during trial. Defendant

11 argues that the district court could not accurately assess his demeanor. In addition, in

12 his memorandum in opposition, Defendant claims that he made statements while

13 under the influence of heroin that had an effect on the jury. [MIO 21-22] This

14 argument was not made in the district court and we will not address it on appeal. See

15 Rojo, 1999-NMSC-001, ¶ 44 (explaining that, in order to preserve an issue for appeal,

16 defendant must make a timely objection that specifically apprises the trial court of the

17 nature of the claimed error and invokes an intelligent ruling thereon); see also State

18 v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating that the court

19 will not search the record to find whether an issue was preserved).


                                              5
 1        The district court found that, based on the evidence, the credibility of the

 2 witnesses, Defendant’s demeanor at trial, Defendant’s responses to questions, and the

 3 district court’s observations, Defendant was competent during trial and understood all

 4 that occurred at trial. [RP 136-37] The district court also found that, even if

 5 Defendant was under the influence of heroin during trial, he voluntarily absented

 6 himself from trial and his due process rights were not violated. [Id.] As explained in

 7 our calendar notice, the district court’s observations of Defendant supported the

 8 conclusion that a new trial was not warranted for the reasons argued by Defendant.

 9 Furthermore, the district court could find that Defendant impliedly and voluntarily

10 waived his presence based on his conduct. See State v. Padilla, 2002-NMSC-016, ¶

11 14, 132 N.M. 247, 46 P.3d 1247. The district court did not abuse its discretion when

12 it denied Defendant’s motion for new trial. See State v. Moreland, 2008-NMSC-031,

13 ¶ 10, 144 N.M. 192, 185 P.3d 363.

14        For the reasons discussed in this opinion and in our calendar notice we affirm

15 Defendant’s conviction.

16        IT IS SO ORDERED.

17
18                                  MICHAEL D. BUSTAMANTE, Judge

19 WE CONCUR:

20
21 CELIA FOY CASTILLO, Judge

                                             6
1
2 RODERICK T. KENNEDY, Judge




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