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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. 32,679

 5 ANTHONY RAY BACA,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Douglas R. Driggers, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 BUSTAMANTE, Judge.
 1   {1}   Defendant appeals from his convictions for kidnaping, in the first degree;

 2 criminal sexual penetration, in the second degree; aggravated battery, in the third

 3 degree; and misdemeanor criminal sexual contact. On appeal, Defendant challenges

 4 the district court’s determination that Defendant was competent to stand trial. This

 5 Court issued a calendar notice proposing to affirm. Defendant has filed a

 6 memorandum in opposition and motion to amend his docketing statement. Having

 7 given due consideration to Defendant’s memorandum in opposition, we remain

 8 unpersuaded and affirm Defendant’s convictions. Furthermore, having considered the

 9 argument raised in Defendant’s motion to amend his docketing statement, we have

10 determined that the issue Defendant seeks to add is not viable. Defendant’s motion to

11 amend the docketing statement is therefore DENIED.

12 Defendant’s Competency to Stand Trial

13   {2}   Defendant contends that the district court erroneously determined that he was

14 competent to stand trial. In this Court’s calendar notice, we proposed to review the

15 district court’s determination of competency for an abuse of discretion. [CN 2 (citing

16 State v. Duarte,1996-NMCA-038, ¶ 15, 121 N.M. 553, 915 P.2d 309)] We noted that,

17 at the hearing, the district court heard testimony from Dr. Davis—a licensed

18 psychologist employed in the Forensic Division at the New Mexico Behavioral

19 Institute—regarding Defendant’s competency to stand trial. [CN 3; RP 156] We also



                                              2
 1 noted that Dr. Davis had opined that Defendant met the objective criteria for

 2 competency. [CN 4; RP 185] And, we pointed out that the district court found, based

 3 on Dr. Davis’s recommendation, that Defendant was competent to stand trial. [CN 4;

 4 RP 156] Further, we proposed to conclude that, to the extent Defendant was arguing

 5 the district court abused its discretion by improperly weighing the expert testimony

 6 in determining whether Defendant was mentally retarded and/or incompetent to assist

 7 in his defense, the conflicting opinions regarding Defendant’s competency did not

 8 demonstrate an abuse of discretion. Rather, we suggested that “[w]hen there exist

 9 reasons both supporting and detracting from a trial court decision, there is no abuse

10 of discretion.” [CN 5 (citing Grant v. Cumiford, 2005-NMCA-058, ¶ 13, 137 N.M.

11 485, 112 P.3d 1142)]

12   {3}   In response, Defendant asserts that this Court proposed to apply an incorrect

13 standard of review. Rather than an abuse of discretion standard, Defendant asserts that

14 the proper standard of review is de novo. [MIO 5] However, Defendant acknowledges

15 that even where a de novo standard of review is applied, this Court reviews factual

16 determinations for substantial evidence. [Id.] Thus, even if this Court were to agree

17 with Defendant’s argument regarding the proper standard of review, application of

18 that standard would not result in reversal.




                                              3
 1   {4}   When this Court reviews factual questions for substantial evidence, “we review

 2 the facts in the light most favorable to the prevailing party, deferring to the district

 3 court’s factual findings so long as substantial evidence exists to support those

 4 findings.” State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 57. As we

 5 noted above, there was testimony presented by Dr. Davis that Defendant was

 6 competent to stand trial. To the extent there were opinions offered by other doctors

 7 at different times opining that Defendant was not competent to stand trial, this Court

 8 does not reweigh evidence or assess credibility on appeal. See State v. Salas, 1999-

 9 NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact

10 finder to resolve any conflict in the testimony of the witnesses and to determine where

11 the weight and credibility lie). Consequently, because there was evidence sufficient

12 to support the district court’s determination, Defendant has failed to demonstrate

13 reversible error even under a de novo standard of review. We therefore affirm

14 Defendant’s convictions.

15 Motion to Amend the Docketing Statement

16   {5}   Defendant has moved this Court to amend his docketing statement to add an

17 additional issue: Whether Defendant’s felony conviction for criminal sexual

18 penetration (CSP) in the commission of a felony can stand where the jury was not

19 instructed to find as an element of the crime that the sexual conduct was unlawful.



                                              4
 1 [MIO 1] The essential requirements to show good cause for our allowance of an

 2 amendment to an appellant’s docketing statement are: (1) that the motion be timely,

 3 (2) that the new issue sought to be raised was either (a) properly preserved below or

 4 (b) allowed to be raised for the first time on appeal, and (3) that the issues raised are

 5 viable. See State v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91,

 6 overruled on other grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537,

 7 817 P.2d 730.

 8   {6}   Recently in State v. Stevens, 2014-NMSC-011, ¶ 3, ___ P.3d ___, our Supreme

 9 Court held that “the jury should be instructed that the crime of criminal sexual

10 penetration during the commission of a felony requires the commission of unlawful

11 sexual activity with the victim of the felony.” However, our Supreme Court concluded

12 that fundamental error had not occurred in that case because the defendant’s guilt was

13 clear and “a trial court’s error in failing to instruct on an essential element of a crime

14 for which defendant has been convicted, where there can be no dispute that the

15 element was established, . . . does not require reversal of the conviction.” Id. ¶ 42

16 (internal quotation marks and citation omitted).

17   {7}   Based on this reasoning, we conclude that Defendant has not demonstrated a

18 viable issue, as there is no dispute that the element of unlawfulness was established.

19 According to Defendant’s statement of facts contained in the docketing statement, the



                                               5
 1 investigation revealed that Victim had called Defendant—who was a friend of

 2 Victim’s fiancé—and asked him for a ride. [DS 2] A few minutes into the ride, Victim

 3 noticed that Defendant was no longer driving in the direction of her fiancé’s house,

 4 but had pulled off on a dirt road where he continued to drive until there were no

 5 longer any residences or other buildings. [Id.] Defendant then stopped the car and

 6 began to strike Victim in the head with what she believed to be a forty-ounce beer

 7 bottle, while stating that he was going to have intercourse with her. [DS 2-3] When

 8 Victim struggled, Defendant began hitting Victim in the face with his fist. [DS 3]

 9 Victim alleged that she told Defendant to do what he wanted because she was bleeding

10 badly and she “was scared to die.” [DS 3] Defendant then had intercourse with Victim,

11 apologized, told her not to tell her fiancé, and took her home. [Id.] Defendant was

12 stopped by police after Victim reported the attack and provided Defendant’s name and

13 physical address. [Id.] During a consensual search of Defendant’s vehicle, police

14 found dried blood stains on both the right front and right rear passenger seats, and on

15 a blue baseball cap that Victim had informed investigators Defendant was wearing at

16 the time of the attack. [DS 2-3] Furthermore, photographs taken at the hospital showed

17 signs of attempted strangulation. [Id.] Thus, based on this evidence, we conclude that

18 evidence of Defendant’s guilt was clear, and the unlawfulness of the CSP was clearly

19 established. Accordingly, we conclude that Defendant has not demonstrated



                                              6
1 fundamental error and has, therefore, not shown that this issue is viable. We therefore

2 deny Defendant’s motion to amend the docketing statement.

3   {8}   For the reasons stated above and in this Court’s notice of proposed disposition,

4 we affirm Defendant’s convictions. Defendant’s motion to amend the docketing

5 statement is denied.

6   {9}   IT IS SO ORDERED.



7
8                                          MICHAEL D. BUSTAMANTE, Judge

9 WE CONCUR:


10
11 JONATHAN B. SUTIN, Judge


12
13 LINDA M. VANZI, Judge




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