 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                     No. 30,449

10 JUAN PEREZ,

11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
12 Stephen Bridgforth, District Judge

13   Gary K. King, Attorney General
14   Santa Fe, NM
15   James W. Grayson, Assistant Attorney General
16   Albuquerque, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender
19 Allison H. Jaramillo, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant


22                                 MEMORANDUM OPINION

23 SUTIN, Judge.
 1        Defendant appeals his conviction for larceny ($250 or less). We issued a

 2 second calendar notice proposing to affirm. Defendant has now filed a memorandum

 3 in opposition to our second calendar notice. We affirm.

 4        Issue 1: Defendant continues to claim that the district court erred in permitting

 5 the State to amend the indictment to conform to the evidence, with the alleged date of

 6 the incident changing from “on or about June 19, 2009,” to “on or between the 5th of

 7 June, and the 19th of June, 2009. [Defendant’s Second MIO 3] As we explained in our

 8 second calendar notice, we are unpersuaded by these arguments. See Hennessy v.

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

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

11 the proposed disposition to clearly point out errors in fact or law.”).

12        Issue 2: Defendant continues to claim that the district court erred in excluding

13 the testimony of his sister, claiming that she would have testified that it was a family

14 practice to permit Defendant to pawn items and that the victim, Defendant’s nephew,

15 had allowed Defendant to do this in the past. [Second MIO 3-4; DS 4, 5] “A criminal

16 defendant has a fundamental right under the Due Process Clause of the United States

17 Constitution to present his own witnesses to establish a defense.” State v. Rosales,

18 2004-NMSC-022, ¶ 7, 136 N.M. 25, 94 P.3d 768 (internal quotation marks and

19 citation omitted).


                                              2
 1        In its memorandum in opposition to our first calendar notice, the State pointed

 2 out that the excluded testimony concerned the practice of pawning the items for

 3 collateral and then returning them to family members. [State’s MIO 2-3] Defendant’s

 4 memorandum likewise indicates that the testimony concerned the practice of pawning

 5 and then returning the items. [Defendant’s Second MIO 2-3] The State has indicated

 6 that it presented evidence that Defendant sold the tools at a flea market. [State’s MIO

 7 3] Miguel Perez testified that tools were missing from a storage building on his

 8 property. [Defendant’s Second MIO 1] Miguel also testified that in the past Defendant

 9 would pawn and return items to him. [Defendant’s Second MIO 2] Miguel’s sister

10 testified that she had allowed Defendant to take things and that she would get them

11 back. [Defendant’s Second MIO 3] To support the elements of larceny, the jury had

12 to determine that Defendant “intended to permanently deprive the owner” of the items.

13 [See RP 83] If the jury did not believe this and believed that Defendant had Miguel’s

14 permission based on Miguel’s testimony, then they would acquit. We conclude that

15 the district court did not abuse its discretion in excluding the proffered cumulative

16 testimony.

17        Issues 3: Defendant relies on previous arguments to challenge the sufficiency

18 of the evidence to support his conviction for larceny. [Defendant’s Second MIO 6]




                                              3
1 For the reasons stated in our second calendar notice, we are not persuaded by these

2 arguments.

3       For the reasons stated in this opinion and in our second calendar notice, we

4 affirm.


5       IT IS SO ORDERED.



6                                       __________________________________
7                                       JONATHAN B. SUTIN, Judge


8 WE CONCUR:



 9 _________________________________
10 RODERICK T. KENNEDY, Judge



11 _________________________________
12 TIMOTHY L. GARCIA, Judge




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