     This decision was not selected for publication in the New Mexico Appellate Reports. Please see
     Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note
     that this electronic decision may contain computer-generated errors or other deviations from the
     official paper version filed by the Supreme Court.

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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                    No. 35,829

 5 JAMES HERRON,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Cristina T. Jaramillo, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                  MEMORANDUM OPINION

17 ZAMORA, Judge.

18   {1}    Defendant James Herron appeals from his convictions, following a jury trial,

19 of three counts of failure to disclose facts to obtain public assistance, contrary to
 1 NMSA 1978, Section 30-40-1 (2006). In this Court’s notice of proposed disposition,

 2 we proposed to summarily affirm. Defendant filed a memorandum in opposition

 3 (MIO), which we have duly considered. Remaining unpersuaded, we affirm

 4 Defendant’s convictions.

 5 Issue A: Burden-Shifting

 6   {2}   Defendant continues to argue that the State improperly shifted the burden of

 7 proof to Defendant in its closing argument. [MIO 3] Defendant clarifies in his MIO

 8 that, in closing, the State repeatedly characterized his actions as failures to report his

 9 true address and faulted him for failing to bring proof of residence after the

10 investigation began. [Id.] Defendant also contends that the State argued that he never

11 came forward with proof that he resided at the addresses disclosed in his welfare

12 applications. [Id.] Defendant claims that he is a borderline-homeless man who lived

13 in precarious slum housing that caused him to frequently change his address, but that

14 he had always truthfully disclosed his living situation to the authorities. [MIO 1]

15 Defendant clarifies his argument that the State’s purported burden-shifting violated

16 his due process rights. [MIO 3] Due process entitles a criminal defendant to a

17 determination that he is guilty of every element of the crime with which he is charged.

18 See State v. Herrera, 2014-NMCA-007, ¶ 8, 315 P.3d 343.




                                               2
 1   {3}   We set forth the jury instructions in our calendar notice, which identifies the

 2 elements required to be proven in order to convict Defendant. [See CN 5-6] The

 3 elements or facts that Defendant contends were not established due to the State’s

 4 improper burden-shifting are that Defendant knowingly failed to disclose a change in

 5 circumstances to the New Mexico Human Services Department (HSD) for the

 6 purposes of obtaining or continuing to receive public assistance to which he is not

 7 entitled and that Defendant knowingly failed to disclose a material fact known to be

 8 necessary to determine eligibility for public assistance to HSD for the purposes of

 9 obtaining or continuing to receive public assistance to which he is not entitled. [See

10 RP 150-54; see also CN 6-7]

11   {4}   According to Defendant’s MIO, the only evidence at trial was testimony from

12 Jessica Gomez, an investigator with HSD’s Office of the Investigator General. [MIO

13 2] Defendant has still failed to provide a complete recitation of all facts material to our

14 consideration of this issue. See Rule 12-208(D)(3) NMRA (stating that the “docketing

15 statement shall contain: . . . a concise, accurate statement of the case summarizing all

16 facts material to a consideration of the issues presented”). Instead, Defendant only

17 contends that Ms. Gomez testified that, during her interview with Defendant, he gave

18 her a deceptive account of his various residences over the past several years; that she

19 “personally went to several of [Defendant]’s past residences, and concluded that he



                                                3
 1 had not lived in them”; and that, in one instance, the city had condemned the

 2 property—although Defendant seems to indicate in his MIO, by way of a parenthetical

 3 explanation, that this occurred after Defendant had claimed tenancy. See State v.

 4 Hanson, 2015-NMCA-057, ¶ 15, 348 P.3d 1070 (“[T]he mere assertions and

 5 arguments of counsel are not evidence[.]” (internal quotation marks and citation

 6 omitted)). [MIO 2]

 7   {5}   In light of the fact that Defendant failed to include a complete recitation of all

 8 testimony offered in support of the State’s position that Defendant failed to disclose

 9 his addresses, see Thornton v. Gamble, 1984-NMCA-093, ¶ 18, 101 N.M. 764, 688

10 P.2d 1268 (stating that “the docketing statement must state all facts material to the

11 issues” and indicating that the material facts include all evidence supporting the

12 findings of the district court), and operating under the presumption of correctness, see

13 State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that

14 “[t]here is a presumption of correctness in the rulings” or decisions of the district

15 court); State v. Chamberlain, 1989-NMCA-082, ¶ 11, 109 N.M. 173, 783 P.2d 483

16 (holding that the appellant’s failure to provide the court with a summary of all the

17 facts material to consideration of an issue on appeal necessitated a denial of relief), we

18 conclude that this evidence is sufficient for a jury to have concluded, beyond a

19 reasonable doubt, that Defendant knowingly failed to disclose a change in



                                               4
 1 circumstances to the HSD for the purposes of obtaining or continuing to receive

 2 public assistance to which he is not entitled and that Defendant knowingly failed to

 3 disclose a material fact known to be necessary to determine eligibility for public

 4 assistance to HSD for the purposes of obtaining or continuing to receive public

 5 assistance to which he is not entitled. We do not re-weigh the evidence but, instead,

 6 “defer to the district court when it weighs the credibility of witnesses and resolves

 7 conflicts in witness testimony.” See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M.

 8 686, 986 P.2d 482; see also State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689,

 9 866 P.2d 1156. Further, although Defendant contends that he always told the truth,

10 “the jury [was] free to reject [the d]efendant’s version of the facts.” State v. Rojo,

11 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

12   {6}   As there was sufficient evidence to support the element that Defendant

13 knowingly failed to provide all material facts and disclose a change in circumstances

14 to HSD for the purposes of obtaining or continuing to receive public assistance to

15 which he is not entitled, we cannot say that Defendant’s due process rights were

16 violated. Moreover, although Defendant complains that the State did not provide

17 affirmative evidence of where Defendant actually was living [MIO 2], that is not an

18 element required by the statute and the State was not required to provide such

19 evidence. See § 30-40-1. [See RP 150-54 (jury instructions)] We therefore conclude



                                             5
 1 that the district court did not err in concluding that the State did not improperly shift

 2 the burden to Defendant.

 3 Issue B: Misleading Jury Instructions

 4   {7}   Defendant additionally continues to argue that the language in the jury

 5 instructions on the elements for Counts 1-4 was misleading. [MIO 4-7] As we

 6 indicated in our calendar notice [CN 5], the relevant statute states that

 7         failing to disclose facts or change of circumstances to obtain public
 8         assistance consists of a person knowingly failing to disclose a material
 9         fact known to be necessary to determine eligibility for public assistance
10         or knowingly failing to disclose a change in circumstances for the
11         purpose of obtaining or continuing to receive public assistance to which
12         the person is not entitled or in amounts greater than that to which the
13         person is entitled.

14 Section 30-40-1(A) (alteration omitted). We further set forth the jury instructions and

15 noted that the jury instructions given to the jury track the language in the statute

16 almost verbatim, adding only reference to Defendant, the specific relevant twelve-

17 month period, and identifying which amount was relevant, and, as such, we suggest

18 that the instructions correctly state the law. [CN 5-7]

19   {8}   In his MIO, Defendant emphasizes the second half of the statute, arguing that

20 it indicates a “purposeful” mens rea as a distinct element of the crime that should be

21 separately set out for the jury. [MIO 4, 5] Defendant’s proffered instruction reads, in

22 pertinent part, that the State was required to prove that



                                               6
 1         1.   Defendant knowingly failed to disclose to HSD a material fact he
 2              knew to be necessary to determine eligibility for public assistance
 3              or that he knowingly failed to disclose a change in circumstances;
 4              and
 5
 6         2.   Defendant failed to disclose such information for the purpose of
 7              obtaining or continuing to receive public assistance to which he
 8              was not entitled or in amounts greater than that to which he was
 9              entitled.

10 [MIO 4-5] Although Defendant’s proffered instruction only substantively differs from

11 the State’s given instruction in the separation of the second paragraph, Defendant

12 argues that such separation was necessary to convey to the jury that the second

13 paragraph represented a separate, distinct element. [MIO 5] The district court found

14 that Defendant’s tendered instruction was too complicated and declined to give it to

15 the jury. [MIO 5]

16   {9}   As we explained in our calendar notice, “[a]n appellate court reviews

17 challenged jury instructions to determine whether they correctly state the law and are

18 supported by the evidence introduced at trial.” State v. Soutar, 2012-NMCA-024,

19 ¶ 21, 272 P.3d 154 (internal quotation marks and citation omitted). Although

20 Defendant’s proffered instruction is not an inaccurate statement of the law, the given

21 instruction is also not an inaccurate statement of the law and is supported by the

22 evidence that was introduced at trial. See id. Additionally, although the given

23 instruction did not set out the “purposeful” aspect of the statute separately, such



                                             7
 1 aspect was included in the given instruction, and we presume that the jury followed

 2 the instructions. See State v. Percival, 2017-NMCA-042, ¶ 25, 394 P.3d 979.

 3 Moreover, contrary to Defendant’s implication [MIO 6], he was not denied an

 4 instruction on his theory of the case as the given instruction included the “purposeful”

 5 language.

 6   {10}   With regard to Defendant’s contention that the “purposeful” language

 7 constituted a separate element of the crime, akin to the separate element noted in State

 8 v. Traeger, 2001-NMSC-022, ¶¶ 22, 26, 130 N.M. 618, 29 P.3d 518, we are

 9 unpersuaded. In Traeger, the separate elements consisted of the defendant’s action and

10 whether the instrument used was a deadly weapon. Id. ¶ 22. The present situation is

11 not analogous. As Defendant has provided no authority to support his contention that

12 the “purposeful” language constitutes a separate and distinct element, we assume no

13 such authority exists. See State v. Casares, 2014-NMCA-024, ¶ 18, 318 P.3d 200

14 (stating that “[w]e will not consider an issue if no authority is cited in support of the

15 issue, because absent cited authority to support an argument, we assume no such

16 authority exists”); see also State v. Garcia, 2016-NMSC-034, ¶ 26, 384 P.3d 1076

17 (arguing that the state was attempting to subsume one element of the crime within the

18 “distinct elements” of misrepresentation and intent, even though the state must prove

19 each element beyond a reasonable doubt, a jury may also “justifiably infer more than



                                               8
 1 one element of a crime from the same evidentiary basis”). We therefore conclude that

 2 the district court did not err in declining to give Defendant’s proffered instruction.

 3 Issue C: Inconsistent Verdicts

 4   {11}   Defendant also continues to argue that the verdicts on Counts 1 and 3 were

 5 inconsistent. Defendant has raised no evidence, facts, or authority that are not

 6 otherwise addressed by this Court’s notice of proposed disposition. See Hennessy v.

 7 Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have

 8 repeatedly held that, in summary calendar cases, the burden is on the party opposing

 9 the proposed disposition to clearly point out errors in fact or law.”); State v.

10 Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that “[a]

11 party responding to a summary calendar notice must come forward and specifically

12 point out errors of law and fact[,]” and the repetition of earlier arguments does not

13 fulfill this requirement), superseded by statute on other grounds as stated in State v.

14 Harris, 2013-NMCA-031, 297 P.3d 374. We therefore refer Defendant to our analysis

15 in our notice of proposed disposition on this issue and conclude that the verdicts were

16 not fatally inconsistent. [See CN 8-9]

17 Issue D: Evidentiary Rulings

18   {12}   Finally, Defendant continues to argue that the district court’s evidentiary rulings

19 denied Defendant his right to a fair trial. [MIO 8–9] Specifically, Defendant argues



                                                 9
 1 that the State failed to overcome the defense’s objections to HSD records

 2 (applications) that purported to contain statements made by Defendant. [MIO 8]

 3 Defendant objected on hearsay and foundation grounds, and the State argued that the

 4 applications were kept as business records by HSD and that they contained the

 5 admission of a party opponent. [Id.] In response, Defendant argued that he is

 6 functionally illiterate and relied on his mother to fill out the forms and, as such, they

 7 neither contained the necessary reliability to be admitted under Rule 11-901(A)

 8 NMRA, nor were they admissible as admissions because they were statements of his

 9 mother. [Id.]

10   {13}   Defendant states in his MIO that Ms. Gomez testified that she was the records

11 custodian for the application forms, but could not testify about the creation of the

12 documents. [Id.] Defendant has still not explained, however, what Ms. Gomez actually

13 testified to with regard to the business record exception—for example, what Ms.

14 Gomez actually stated with regard to identifying the applications and presumably

15 contending that they are what the State claims them to be, or perhaps whether the

16 application forms were signed by Defendant in her presence or signed at all or

17 whether Defendant told Ms. Gomez that the applications were true and accurate,

18 correct, and signed by him. See Rule 11-901(A). Indeed, all Defendant states is that

19 Ms. Gomez “testified that she was the records custodian for the application forms.”



                                              10
 1 [MIO 8] Likewise, Defendant has not provided this Court with any specificity as to

 2 any testimony and argument offered by the State regarding its argument that the

 3 application contained statements made by Defendant, particularly in response to

 4 Defendant’s argument that the statements were not made by him because his mother

 5 purportedly filled out the forms. [See MIO 8–9] Instead, in his MIO, Defendant

 6 merely contends that the State claimed that the forms contained Defendant’s

 7 statements and failed to establish that they were, in fact, made by him. [Id.]

 8   {14}   Because Defendant has still not provided this Court with all facts material to

 9 our consideration of the issues presented, see Rule 12-208(D)(3), we continue to

10 presume correctness in the district court’s rulings, particularly on an abuse of

11 discretion standard. See State v. Bregar, 2017-NMCA-028, ¶ 28, 390 P.3d 212 (“[I]f

12 an evidentiary issue is preserved by objection, we review the district court’s decision

13 to admit or exclude evidence for an abuse of discretion, which means the decision was

14 clearly against the logic and effect of the facts and circumstances of the case.”

15 (internal quotation marks and citation omitted)); Aragon, 1999-NMCA-060, ¶ 10;

16 Hennessy, 1998-NMCA-036, ¶ 24 (reiterating that “the burden is on the party

17 opposing the proposed disposition to clearly point out errors in fact or law”);

18 Mondragon, 1988-NMCA-027, ¶ 10 (stating that a party responding to a summary




                                              11
1 calendar notice must come forward and specifically point out errors of law and fact).

2 We therefore conclude that the district court did not err in admitting the six exhibits.

3   {15}   Accordingly, for the reasons stated in our notice of proposed disposition and

4 herein, we affirm Defendant’s convictions.

5   {16}   IT IS SO ORDERED.


6
7                                          M. MONICA ZAMORA, Judge

8 WE CONCUR:


 9
10 JULIE J. VARGAS, Judge


11
12 HENRY M. BOHNHOFF, Judge




                                             12
