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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. 31,136

 5 EDWARD GARCIA,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
 8 Gary M. Jeffreys, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   Francine A. Chavez, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Law Office of Steven Almanza
15 Steven L. Almanza
16 Las Cruces, NM

17 for Appellant
 1                             MEMORANDUM OPINION

 2 BUSTAMANTE, Judge.

 3        Defendant Edward Garcia appeals his convictions for aggravated assault against

 4 a household member (deadly weapon), false imprisonment, and aggravated battery

 5 against a household member (no great bodily harm). We affirm.

 6 SUFFICIENCY OF THE EVIDENCE

 7        Defendant argues that insufficient admissible evidence supported his conviction

 8 for aggravated assault on his girlfriend, Leticia Loya (Victim), with a deadly weapon.

 9 He does not challenge the sufficiency of the evidence for his other two convictions.



10        “Substantial evidence is relevant evidence that a reasonable mind might accept

11 as adequate to support a conclusion.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.

12 438, 971 P.2d 829. “In reviewing the sufficiency of evidence used to support a

13 conviction, we resolve all disputed facts in favor of the [s]tate, indulge all reasonable

14 inferences in support of the verdict, and disregard all evidence and inferences to the

15 contrary.” Id. We determine as a matter of law “whether the evidence viewed in this

16 manner could justify a finding by any rational trier of fact that each element of the

17 crime charged has been established beyond a reasonable doubt.” State v. Apodaca,




                                               2
 1 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation

 2 omitted).

 3        To convict Defendant of aggravated assault on a household member with a

 4 deadly weapon, the State had to prove each of the following elements beyond a

 5 reasonable doubt:

 6        1.     [D]efendant threatened [Victim] with a knife;
 7        2.     [D]efendant’s conduct caused [Victim] to believe [D]efendant was
 8               about to intrude on [Victim’s] bodily integrity or personal safety
 9               by touching or applying force to [Victim] in a rude, insolent or
10               angry manner;
11        3.     A reasonable person in the same circumstances as [Victim] would
12               have had the same belief;
13        4.     [Victim] was a household member of [D]efendant;
14        5.     [D]efendant used a knife;
15        6.     This happened in New Mexico on or about the 8th day of March,
16               2010.

17 See UJI 14-305 NMRA; NMSA 1978, § 30-3-13(A)(1) (1995). There does not appear

18 to be any dispute as to the time and place of the incident or that Victim was a

19 household member of Defendant. Rather, the dispute concerns whether Defendant

20 had a knife and whether he threatened Victim with it such that she felt Defendant was

21 about to intrude on her bodily integrity or personal safety.

22        At trial, Victim testified on direct examination as follows. After Defendant had

23 punched her in the head several times, she tried to go from the bedroom into the living

24 room. At that point, Defendant took a knife out of his pants pocket and told her to go


                                              3
 1 back into the bedroom. Defendant struck her again, and acted as if he was going to

 2 stab her with the knife. Defendant told her that he was not going to jail for hitting her

 3 and that if she called the police he was going to kill her and himself. He put the knife

 4 to her stomach, and she believed he intended to injure her because he had done it “so

 5 many times” before. At some point, the knife “went flying” out of Defendant’s hand.

 6 She did not know where it was, but Defendant eventually found it and put it back in

 7 his pocket. She never saw the knife again after that.

 8        On cross-examination, Victim testified concerning the written statement she

 9 made in the course of obtaining a restraining order on March 10, 2010, two days after

10 the incident described above. She acknowledged that she had not mentioned in the

11 written statement that Defendant had threatened to kill her, only that he threatened to

12 kill himself. Defense counsel asked her if she recalled stating during an interview

13 with defense counsel about two weeks earlier that Defendant never found the knife,

14 and that it was in the draperies and she found it later. Victim replied that she did not

15 recall saying that, but that at the time of the incident she had seen the knife hanging

16 in the draperies but that she did not tell Defendant, who was looking for it, that it was

17 there. She was not able to describe the knife.

18        Defendant testified on his own behalf at trial. On direct examination, he

19 acknowledged that he had struck Victim, but denied ever having a knife. The two


                                               4
 1 police officers who investigated the incident both testified that they had not looked for

 2 a knife as part of their investigation because the incident had occurred two days

 3 earlier.

 4        Defendant points to several purported discrepancies between Victim’s

 5 testimony at trial and her earlier statements. He argues that these are not mere

 6 inconsistencies, but are outright contradictions and are so frequent that no reasonable

 7 jury could have found him guilty beyond a reasonable doubt. First, he points out that

 8 when Victim applied for a restraining order two days after the incident, she did not

 9 mention in her affidavit that Defendant had threatened her; she only stated that

10 Defendant took out the knife and threatened to kill himself. The affidavit does not

11 appear in the record, but we consider the purported discrepancy inconsequential. We

12 first note that Victim’s affidavit was consistent with her trial testimony to the extent

13 that Defendant had a knife. Further, a written narrative in support of a petition for a

14 restraining order, which needs only to provide enough information to persuade the

15 judge that a restraining order is justified, is a different circumstance than testimony

16 in response to structured questioning at trial by a prosecutor seeking to establish each

17 element of a charged offense.         See NMSA 1978, § 40-13-3 (2008) (stating

18 requirements for domestic violence order of protection).




                                               5
 1       Next, Defendant suggests that Victim testified inconsistently as to whether

 2 Defendant touched her with the knife. We disagree. In relevant part, the following

 3 exchange took place:

 4       Victim:       [Defendant] took out the knife and he said he was going to
 5                     stab me. . . . He put it to my stomach and . . . .

 6              ....

 7       Victim:       I tried to go into the living room, and then he took the knife
 8                     out and told me to go back into the room. And I said that
 9                     I just wanted to be with the girls, and he put it to my
10                     stomach and told me that he was going to use it if I didn’t
11                     go back to the room, so I went back to the room.

12              ....

13       Prosecutor: Could you describe how you felt when you had the knife
14                   against you?

15              ....

16       Prosecutor: [D]id he touch you with the knife?

17       Victim:       No. He . . .

18       Prosecutor: Just pointed it at you?

19       Victim:       Yes.

20       Prosecutor: And where did he point it?

21       Victim:       He put it to my stomach right here.




                                              6
 1 On redirect examination, Victim further explained that she had not been cut by the

 2 knife but that it had come in contact with her clothing. With the possible exception

 3 of Victim’s brief, incomplete statement “No. He . . . ,” her testimony was consistent

 4 in asserting that Defendant held the knife against her, and she apparently indicated

 5 exactly where the knife was held. We see nothing contradictory in Victim’s testimony

 6 on this subject.

 7        Finally, Defendant asserts that Victim’s testimony regarding the point at which

 8 Defendant lost the knife was contradictory.        We again disagree.       On direct

 9 examination, Victim’s testimony included the following.

10        Victim:      [Defendant] took out his knife, like–like if he was going to
11                     stab me with it, and the knife just like slipped out of his
12                     hand. I don’t know what happened, but he got really mad
13                     and he was looking for it like crazy. He had me looking for
14                     it. He even moved the furniture around to find it.

15              ...

16        Prosecutor: You said the knife went flying. How did that happen?

17        Victim:      I don’t know. I don’t know if I kicked it, with my hand. I
18                     don’t know. I just saw the knife, because when he went
19                     like that (indicating), I just closed my eyes, and when I
20                     opened them, he didn’t have the knife. He was–it was–I
21                     saw it went flying, but I didn’t know where it was at, the
22                     knife, and he started looking for it.

23        Prosecutor: Did he ever find the knife?

24        Victim:      Yes.

                                             7
 1       Prosecutor: And what did he do with it?

 2       Victim:     He put it back in his pocket.

 3 On cross-examination, the following exchange took place between defense counsel

 4 and Victim:

 5       Counsel:    And at that time, the knife slipped out of his hand?

 6       Victim:     Yes.

 7       Counsel:    And then he went and found that knife, correct?

 8       Victim:     Yes.

 9       Counsel:    And took it, right?

10       Victim:     Yes.

11       Counsel:    Do you remember talking to me about two weeks ago at the
12                   district attorney’s office?

13       Victim:     Yes.

14       Counsel:    And do you remember telling me on that date that he never
15                   did find the knife?

16       Victim:     No.

17       Counsel:    That the knife was actually in the draperies and you found
18                   it later?

19       Victim:     No. I saw it there, that it was hanging, but I did not tell him
20                   where it was, because he had me looking for it. And I said
21                   I just didn’t know where it was at, and he kept on looking
22                   for it.


                                            8
 1 Victim then acknowledged that she could not describe the knife because she had not

 2 seen it before.

 3        Again, we see no significant inconsistency in this testimony. On direct

 4 examination, Victim testified that when the knife went flying, she did not know where

 5 it went. The prosecutor did not ask her if at some later point she learned where it had

 6 gone. When Defendant’s counsel asked her on cross-examination whether the knife

 7 had gone into the draperies, she denied having found it there later, and explained that

 8 at some point, presumably while she and Defendant were still looking for it, she had

 9 noticed it in the draperies but did not tell Defendant. We further observe that the

10 question of precisely when and how the knife was found has little bearing on the issue

11 of whether Defendant threatened Victim with it. We conclude that Victim’s testimony

12 on direct examination and on cross-examination is adequately reconcilable.

13        We conclude that sufficient evidence supported each element of the charge of

14 aggravated assault with a deadly weapon on a household member such that a jury

15 could find each element established beyond a reasonable doubt.

16 ADMISSIBILITY OF EVIDENCE OF DEFENDANT’S DRUG USE

17        Defendant argues that the district court committed reversible error when it

18 allowed the prosecutor to ask Defendant questions about his alleged drug abuse. “The

19 admission or exclusion of evidence is within the sound discretion of the district court;


                                              9
 1 that judgment will be set aside only on a showing of abuse of discretion.” State v.

 2 Barr, 2009-NMSC-024, ¶ 29, 146 N.M. 301, 210 P.3d 198, overruled on other

 3 grounds by State v. Tollardo, 2012-NMSC-008,            N.M.      , 275 P.3d 110. “An

 4 abuse of discretion occurs when the ruling is clearly against the logic and effect of the

 5 facts and circumstances of the case. We cannot say the trial court abused its discretion

 6 by its ruling unless we can characterize it as clearly untenable or not justified by

 7 reason.” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation marks and citation omitted).

 8        On cross-examination of Defendant, the following exchange took place:

 9        Prosecutor: Were you under the influence of meth or any other drugs
10                    that day?

11        Defendant: No, not that day.

12        Prosecutor: But before?

13        Defendant: I–I have been.

14        Prosecutor: Isn’t it true that by March 10, you had been up for five or
15                    six days without sleeping?

16 At this point, defense counsel asked to approach for a bench conference. He argued

17 that Defendant’s alleged drug use was not relevant or material, as he had not been

18 charged with any drug offense, and that the questioning was more prejudicial than

19 probative. The prosecutor responded that Victim had testified that Defendant had

20 been on drugs, and that the questioning thus was relevant to her credibility as to why


                                              10
 1 she did what she did, including not calling the police. The district court allowed the

 2 questioning, upon which the prosecutor continued:

 3        Prosecutor: Mr. Garcia, isn’t it true that by March 10, you’d been
 4                    awake without sleeping for five or six days?

 5        Defendant: No. I was under the influence of narcotics on March 10 but
 6                   not up for several days, maybe up for one night before.

 7 The prosecutor also questioned Defendant about his two prior felony convictions and

 8 established that they were drug-related.

 9        We agree with Defendant that the district court erred in allowing the prosecutor

10 to question Defendant about his drug use, as it was not relevant to any of the charges

11 at trial. See Rule 11-404(B) NMRA (“Evidence of other crimes, wrongs or acts is not

12 admissible to prove the character of a person in order to show action in conformity

13 therewith.”); Rule 11-403 NMRA (“Although relevant, evidence may be excluded if

14 its probative value is substantially outweighed by the danger of unfair prejudice,

15 confusion of the issues or misleading the jury. . . .”). Victim’s remarks during her

16 testimony that Defendant “had already been acting weird for a couple of days, which

17 I believe he had been using drugs,” and that he “was acting weird again, like–like he

18 was on drugs,” did not make Defendant’s drug use any more relevant to the charges.

19        We conclude, however, that any error in allowing the questions about drug use

20 was harmless error. Because the error consisted of a violation of rules of evidence and


                                              11
 1 did not implicate any constitutional issues such as the right of confrontation, the error

 2 was non-constitutional. “[W]here a defendant has established a violation of statutory

 3 law or court rules, non-constitutional error review is appropriate. A reviewing court

 4 should only conclude that a non-constitutional error is harmless when there is no

 5 reasonable probability the error affected the verdict.” Barr, 2009-NMSC-024, ¶ 53;

 6 see also Tollardo, 2012-NMSC-008, ¶ 43 (stating that consideration of whether an

 7 error was harmless “requires an examination of the error itself, which depending upon

 8 the facts of the particular case could include an examination of the source of the error

 9 and the emphasis placed upon the error”).

10        In concluding that there was no reasonable probability that the error affected

11 the verdict and was thus harmless, we make two observations. First, as noted above,

12 Victim had already raised the subject of drug use in her testimony during the State’s

13 case. Second, as indicated by the transcript excerpt above, Defendant denied being

14 under the influence of methamphetamine or other drugs on “that day,” presumably

15 meaning March 8, 2010, the date of the incident. He later acknowledged that he was

16 under the influence of narcotics on March 10, 2010, the date police first investigated

17 the incident. Thus, to the extent Victim’s testimony suggested to the jury that

18 Defendant was under the influence of drugs on March 8, his testimony taken at face

19 value refuted that suggestion.


                                              12
 1        In Tollardo, the New Mexico Supreme Court recently repudiated the long-

 2 standing three-part harmless error test first announced in State v. Moore, 94 N.M. 503,

 3 504, 612 P.2d 1314, 1315 (1980). See Tollardo, 2012 NMSC-008, ¶¶ 29-42. That

 4 test considered the proportionate volume of evidence for and against a defendant, with

 5 little consideration of the effect the error might have had on the verdict. Tollardo

 6 recognizes, however, that “evidence of a defendant’s guilt separate from the error may

 7 often be relevant, even necessary, for a court to consider, since it will provide context

 8 for understanding how the error arose and what role it may have played in the trial

 9 proceedings.” Id. ¶ 43. As discussed above, Victim’s testimony provided substantial

10 evidence to support each of the charges for which Defendant was convicted.

11 Defendant’s own testimony, in which he admitted striking Victim, provided

12 substantial evidence for the aggravated battery conviction. In this context, we

13 conclude that there is no reasonable probability that the brief and somewhat

14 inconclusive questioning about Defendant’s drug use affected the verdict.

15 CONCLUSION

16        For the reasons set forth above, we affirm Defendant’s convictions.

17        IT IS SO ORDERED.



18
19                                          MICHAEL D. BUSTAMANTE, Judge

                                              13
1 WE CONCUR:


2
3 JAMES J. WECHSLER, Judge


4
5 TIMOTHY L. GARCIA, Judge




                             14
