                                                                  I attest to the accuracy and
                                                                   integrity of this document
                                                                     New Mexico Compilation
                                                                   Commission, Santa Fe, NM
                                                                  '00'05- 10:04:39 2012.01.30
Certiorari Denied, December 16, 2011, No. 33,314

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-007

Filing Date: November 7, 2011

Docket No. 29,976

STATE OF NEW MEXICO,

                Plaintiff-Appellee,

v.

RAYMOND ARCHULETA,

                Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Eugenio S. Mathis, District Judge

Gary K. King, Attorney General
Andrea Sassa, Assistant Attorney General
Santa Fe, NM

for Appellee

Jacqueline L. Cooper, Acting Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

GARCIA, Judge.

{1}    On or about February 14, 2009, Defendant was found in possession of property
which the State alleged had been stolen from the home of Phillip Baca and Denise Velarde.
Defendant ran from police officers, depositing a stolen watch and a syringe in a garbage bin.
He was charged with burglary, possession of stolen property with a value in excess of $500,
possession of drug paraphernalia, tampering with evidence, and resisting arrest. Defendant
was ultimately acquitted of both burglary and possession of drug paraphernalia, but
convicted of all other charges. On appeal, Defendant contends that: (1) the district court
erred in denying his motions for a continuance and to reappoint counsel after Defendant
waived his right to counsel and moved to represent himself; (2) there was insufficient
evidence that Defendant possessed stolen property with a value in excess of $500, a fourth-
degree felony and, thus, there was also insufficient evidence to support Defendant’s
conviction for tampering with evidence of a fourth-degree felony; (3) the admission of
certain statements by one of the State’s witnesses constituted fundamental error and violated
Defendant’s confrontation clause rights; and (4) cumulative error deprived Defendant of his
right to a fair trial. For the reasons that follow, we find no error and affirm.

DISCUSSION

I.     Defendant’s Motions for a Continuance and to Reappoint Counsel

{2}     Defendant argues that the district court erred in denying his motions for a
continuance and to reappoint counsel. At trial, Defendant was initially represented by
counsel but, on June 23, 2009, Defendant requested that he be allowed to represent himself.
The court conducted an extensive inquiry, advising Defendant of the potential consequences
of choosing to proceed pro se. Throughout the inquiry, Defendant continually maintained
that he understood the risks and that he still wished to represent himself. The district court
granted his motion, finding that Defendant had knowingly, voluntarily, and intelligently
waived his right to counsel and relieved Defendant’s counsel from his representation. On
the same date, Defendant was informed that the matter was scheduled for trial on September
10, 2009.

{3}     On September 9, 2009, the day before trial, Defendant moved to continue the trial,
asserting that he was unprepared because he had not been able to physically see some of the
stolen items to prepare his case and because he had been able to spend only approximately
one hour in the detention center library since receiving additional discovery from the State
approximately two weeks earlier. The court asked Defendant what specific items he needed
to see, and he identified a cell phone, sunglasses, and an earring, all being items which
ultimately were not used in securing Defendant’s convictions. The court asked Defendant
why the inventory list and photographs that were in his possession were not sufficient, and
Defendant merely maintained that he was not given full discovery because he was not able
to personally see all actual items. The district court denied Defendant’s motion for a
continuance and found that Defendant had not provided sufficient reasons why he was
unable to be prepared for trial the next day.

{4}     Immediately after Defendant’s motion to continue was denied, Defendant made a
motion to have counsel reappointed. Defendant asserted the same arguments he made
regarding his motion for a continuance, arguing that he had not had adequate time to prepare
his case and that he had not received full discovery. The district court denied Defendant’s
motion, stressing that Defendant was making the request the day before trial when he had
already waived his right to counsel and requested to represent himself.

A.     Defendant’s Motion for a Continuance
{5}    The grant or denial of a motion for a continuance rests within the sound discretion
of the trial court, and the burden of establishing an abuse of discretion rests with the
defendant. State v. Sanchez, 120 N.M. 247, 253, 901 P.2d 178, 184 (1995); see State v.
Perez, 95 N.M. 262, 264, 620 P.2d 1287, 1289 (1980) (“[I]n the absence of demonstrated
abuse resulting in prejudice to the defendant there is no ground for reversal.”). “Trial judges
necessarily require a great deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and jurors at the same place at the
same time, and this burden counsels against continuances except for compelling reasons.”
State v. Brazeal, 109 N.M. 752, 756, 790 P.2d 1033, 1037 (Ct. App. 1990) (internal
quotation marks and citation omitted).

{6}     Factors that a court considers when weighing the merits of a continuance request are
(1) the length of the delay, (2) the likelihood that a delay would accomplish the movant’s
objectives, (3) the existence of previous continuances in the same matter, (4) the degree of
inconvenience to the parties and the court, (5) the legitimacy of the motives in requesting the
delay, (6) the fault of the movant in causing a need for the delay, and (7) the prejudice to the
movant in denying the motion. State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976
P.2d 20. While this was Defendant’s first request for a continuance, there were various
additional reasons justifying the court’s denial of Defendant’s motion. Defendant’s request
came the day before trial, after he had been previously informed and reminded on multiple
occasions of the upcoming trial date. The granting of Defendant’s eleventh-hour motion
would have likely caused significant inconvenience to the court and the State, both of which
had prepared for Defendant’s trial the following day. Additionally, the factors regarding the
likelihood that a delay would accomplish the movant’s objectives and the prejudice to the
movant hold relatively little or no weight in this circumstance. The evidence Defendant
requested to physically inspect after it was viewed in the pre-trial photographs was never
offered or used against him. In addition, Defendant failed to articulate how waiting one day
to view the physical evidence rather than the photographs of the evidence caused him any
prejudice. Finally, Defendant’s reasons for a continuance failed to identify a legitimate
motive that justified postponing the trial. As a result, Defendant did not meet his burden by
sufficiently explaining why Defendant’s limited time in the detention center library and the
allegedly missing and late discovery provided compelling reasons for a continuance. Under
these circumstances, we cannot say that the district court abused its discretion in denying
Defendant’s motion to continue.

B.      Defendant’s Motion to Reappoint Counsel

{7}      Defendant also challenges the court’s denial of his motion to reappoint counsel. In
State v. Vincent, we followed the lead of multiple out-of-state jurisdictions to hold that once
a defendant has validly waived his right to counsel, he may not later demand the assistance
of counsel as a matter of right. 2005-NMCA-064, ¶ 48, 137 N.M. 462, 112 P.3d 1119; see
State v. Canedo-Astorga, 903 P.2d 500, 504 (Wash. Ct. App. 1995) (“After a competent
defendant has made a valid waiver, reappointment is a matter for the discretion of the trial
court.”); State v. Gallegos, 2006 UT App 404, ¶ 10, 147 P.3d 473 (Utah Ct. App. 2006) (“A
trial court’s denial of a motion to reappoint counsel, where the motion follows a proper
waiver of the right to counsel, will be overturned only for an abuse of discretion.”); People
v. Cruz, 147 Cal. Rptr. 740, 747 (Ct. App. 1978) (“The decision whether to reappoint
counsel after a waiver of that right appears to be a matter within the discretion of the trial
court.”). However, in exercising discretion, a trial court should consider all the facts and
circumstances of the case.

       Because [s]elf-representation is a grave undertaking, one not to be
       encouraged, the request for reappointment should be granted absent reasons
       to deny. In some cases, however, there will be reasons to deny—for
       example, that the request comes on the eve of or during trial, and will delay
       or interrupt the trial if granted.

Canedo-Astorga, 903 P.2d at 504 (alteration in original) (footnote omitted) (internal
quotation marks omitted). We must review whether the district court abused its discretion
when it denied Defendant’s motion to reappoint counsel on the eve of trial.

{8}      First, we now adopt the approach taken by the California Supreme Court in People
v. Lawrence to provide guidance to the trial court when determining whether to grant a pro
se defendant’s motion to reappoint counsel. 205 P.3d 1062, 1066-67 (Cal. 2009) (citing
People v. Elliot, 139 Cal. Rptr. 205, 210-11 (Ct. App. 1977)). There, the court suggested
that a trial court should apply the following factors when faced with a defendant’s request
to reappoint counsel: (1) the defendant’s prior history in the substitution of counsel and in
the desire to change from self-representation to counsel-representation, (2) the reasons set
forth for the request, (3) the length and stage of the proceedings, (4) disruption or delay
which reasonably might be expected to ensue from the granting of such motion, and (5) the
likelihood of the defendant’s effectiveness in defending against the charges if required to
continue to act as his own attorney. Id.

{9}     After considering the totality of the circumstances surrounding Defendant’s request
for reappointment of counsel, we conclude the district court did not abuse its discretion in
denying the request. Here, we note that Defendant had the benefits of previously appointed
counsel who assisted with his case before he moved to represent himself. Defendant was
thoroughly and adequately apprised by the district court of the inherent risks involved in
self-representation before he made a valid waiver of his right to counsel. Months later, he
moved to reappoint counsel on the day before trial was set to begin.

{10} The district court found that Defendant’s offered reasons to reappoint counsel were
insufficient, and we agree. It was unclear what additional assistance Defendant needed and
why he felt the inventory list and photographs of the items in his possession were inadequate
to allow him to prepare his defense. He did not explain or articulate why such a personal
inspection of certain physical evidence seized from him at the time of arrest was needed to
prepare his defense versus viewing the evidence personally the following day at trial.
Further, granting Defendant’s motion would clearly have caused substantial delay to the
proceedings, as the request came on the eve of trial and would have required last minute
rescheduling for the court, witnesses, and jurors who had been secured to attend the
following day. The case itself was a relatively routine stolen property matter and Defendant
never expressed any concern regarding its nature or complexity. The dismissal of one of the
original charges and the not guilty verdict rendered on one other charge further attest to
Defendant’s ability to represent himself in an adequate manner. Under these circumstances,
we find no abuse of discretion in the denial of Defendant’s request for reappointment of
counsel.

{11} Defendant alternatively asks the Court to adopt the approach taken by the state of
Washington in State v. Silva, 27 P.3d 663, 673 (Wash. Ct. App. 2001) (holding that the
Washington Constitution affords a pretrial detainee who has exercised his constitutional
right to represent himself a right of reasonable access to state-provided resources that will
enable him to prepare a meaningful pro se defense). We decline to do so. Because
Defendant failed to advise the district court that he was either requesting or asserting an
expanded right under the New Mexico Constitution, this issue is not properly before this
Court. State v. Gomez, 1997-NMSC-006, ¶¶ 19, 22, 122 N.M. 777, 932 P.2d 1 (where the
provision has never before been addressed under our interstitial analysis, trial counsel
additionally must argue that the state constitutional provision should provide greater
protection, and suggest reasons as to why, for example, “a flawed federal analysis, structural
differences between state and federal government, or distinctive state characteristics”).

II.    Denise Velarde’s Statements Regarding the Value of the Stolen Property

{12} At trial, the State called Denise Velarde, who resided in the burglarized home with
her husband, Phillip Baca. Ms. Velarde testified to the items stolen from their home and the
value of those items, including an iPod valued at $150, tennis shoes valued at $110, an
internet card valued at $220, three cellular phone chargers valued at $25 each, and a watch
valued at $100. The State also entered into evidence photographs of the stolen items which
were taken by Phillip Baca prior to the burglary. When testifying about the watch, Ms.
Velarde stated that she knew how much it was worth because her husband told her the value.
Defendant argues on appeal that the admission of Ms. Velarde’s testimony violated
Defendant’s confrontation clause rights because Ms. Velarde’s statement regarding the
watch’s value constituted inadmissible hearsay, and she otherwise did not indicate how she
had personal knowledge of the other items’ values.

{13} We note that Defendant failed to preserve the confrontation and personal knowledge
issues in the district court. Because Defendant never objected to the admission of the
statements below, we only review the statements to determine whether their admission
created fundamental error. State v. Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998
P.2d 176; see State v. Martinez, 2007-NMSC-025, ¶ 25, 141 N.M. 713, 160 P.3d 894
(reviewing a defendant’s Confrontation Clause claim for fundamental error even though the
issue was not preserved); State v. Aguilar, 117 N.M. 501, 507, 873 P.2d 247, 253 (1994)
(reviewing for fundamental error based upon improper statements and arguments presented
to the jury). Fundamental error occurs only in “cases with defendants who are indisputably
innocent, and cases in which a mistake in the process makes a conviction fundamentally
unfair notwithstanding the apparent guilt of the accused.” State v. Barber, 2004-NMSC-019,
¶ 17, 135 N.M. 621, 92 P.3d 633. It applies “in exceptional circumstances when guilt is so
doubtful that it would shock the judicial conscience to allow the conviction to stand.” State
v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, overruled on other grounds
by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. Defendant argues that
the statements amounted to fundamental error at trial because Defendant was never able to
cross-examine Mr. Baca. We disagree.

{14} In this case, the admission of Ms. Velarde’s testimony was not fundamental error.
We note that even if Ms. Velarde’s statement regarding the watch’s value should have been
excluded as hearsay, the value of the other items admitted into evidence still totaled more
than the $500 threshold amount. Because there was sufficient additional evidence for a jury
to find Defendant guilty, we find no fundamental error. See State v. Rodriguez, 81 N.M.
503, 505, 469 P.2d 148, 150 (1970) (“If there is substantial evidence . . . to support the
verdict of the jury, we will not resort to fundamental error.”).

III.   Sufficiency of the Evidence of the Value of Stolen Property

{15} Defendant argues that the evidence presented at trial was insufficient to result in his
conviction for fourth-degree receiving stolen property and for tampering with evidence. Our
review of a sufficiency of the evidence question involves a two-step process. See State v.
Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994). Initially, we view the evidence in
the light most favorable to the verdict, indulging all reasonable inferences and resolving all
conflicts in the evidence in favor of the verdict, and then we must “make a legal
determination of whether the evidence viewed in this manner could justify a finding by any
rational trier of fact that each element of the crime charged has been established beyond a
reasonable doubt.” Id. (internal quotation marks and citation omitted). The question is
whether the district court’s “decision is supported by substantial evidence, not whether the
[district] court could have reached a different conclusion.” In re Ernesto M., Jr., 1996-
NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. “The reviewing court does not weigh the
evidence or substitute its judgment for that of the fact finder as long as there is sufficient
evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950
P.2d 789, abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381,
237 P.3d 683.

{16} To convict Defendant of fourth-degree receiving stolen property, the State was
required to prove that: (1) the iPod, wireless internet card, Pittsburgh Steelers watch, Jordan
tennis shoes, and phone chargers had been stolen; (2) Defendant kept this property; (3) at the
time Defendant kept the property, he knew or believed it had been stolen; (4) the property
had a market value of over $500; and (5) this happened in New Mexico on or about February
14, 2009. The jury was further instructed that market value means the price at which the
property could ordinarily be bought or sold at the time of the alleged receipt of stolen goods.
Defendant challenges only whether the State sufficiently proved that the market value of the
items possessed exceeded $500.

{17} We find no basis in the record to support Defendant’s argument that Ms. Velarde
only testified to the purchase price of the items, not their market value. Ms. Velarde did, in
reference to the tennis shoes and wireless internet card, indicate that she knew the value of
the items because she and her husband “bought them.” Ms. Velarde testified that the tennis
shoes were purchased only a week and a half prior to the burglary, and that the internet card
was purchased from her husband’s workplace. As to the other items, Ms. Velarde was
questioned, without objection, as to the “value” of the items. The relationship between the
market value and purchase price of these items was never disputed by Defendant or explored
further with Ms. Velarde. In the light most favorable to the verdict, Ms. Velarde’s testimony
of the value of the stolen items, particularly when coupled with photographic and physical
exhibits of the items entered into evidence at trial, was sufficient to allow the jury to
conclude that the market value of the items possessed by Defendant exceeded $500. It is
well settled that an owner of personal property may testify concerning the value of the
property and that such testimony is sufficient to support a jury’s determination of value.
State v. Dominguez, 91 N.M. 296, 299-300, 573 P.2d 230, 233-34 (Ct. App. 1977); State v.
Zarafonetis, 81 N.M. 674, 677, 472 P.2d 388, 391 (Ct. App. 1970). “The reason for this rule
is that the owner necessarily knows something about the quality, cost, and condition of his
or her property and consequently knows approximately what it is worth.” State v. Hughes,
108 N.M. 143, 146, 767 P.2d 382, 385 (Ct. App. 1988). Based on Ms. Velarde’s testimony
valuing the stolen items and exhibits depicting the items stolen, the jury could reasonably
infer that the market value of the stolen items exceeded $500. Because substantial evidence
supports the jury’s determination that Defendant possessed property valued over $500, we
affirm Defendant’s conviction for fourth-degree receiving stolen property.

{18} Defendant also argues that because there was insufficient evidence to convict
Defendant of fourth-degree receiving stolen property, there is also insufficient evidence to
convict Defendant of tampering with evidence, another fourth-degree felony. Because we
have rejected Defendant’s argument holding that there was sufficient evidence to support
Defendant’s conviction for possession of stolen property, we also reject Defendant’s
identical arguments that there was insufficient evidence of tampering with evidence.

IV.    Cumulative Error

{19} Defendant argues that the cumulative effect of the various alleged errors outlined
above, including Ms. Velarde’s testimony regarding the value of the stolen property and the
court’s denial of his motions to continue and to reappoint counsel, denied Defendant a fair
trial. “The doctrine of cumulative error requires reversal when a series of lesser
improprieties throughout a trial are found, in aggregate, to be so prejudicial that the
defendant was deprived of the constitutional right to a fair trial.” State v. Duffy, 1998-
NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, modified on other grounds by State v.
Gallegos, 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828. The cumulative error
doctrine is strictly applied and may not be successfully invoked if “the record as a whole
demonstrates that the defendant received a fair trial.” State v. Trujillo, 2002-NMSC-005,
¶ 63, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citation omitted). We
recognize the doctrine of cumulative error in the State of New Mexico; however, it has no
application if no errors are committed and if the defendant has received a fair trial. State v.
Seaton, 86 N.M. 498, 501, 525 P.2d 858, 861 (1974); State v. Carr, 95 N.M. 755, 769, 626
P.2d 292, 306 (Ct. App. 1981), overruled on other grounds as recognized by State v. Olguin,
120 N.M. 740, 906 P.2d 731. Because we have held that there was no error, we conclude
that the cumulative error doctrine does not apply. See State v. Aragon, 1999-NMCA-060,
¶ 19, 127 N.M. 393, 981 P.2d 1211 (holding that when there is no error, “there is no
cumulative error”).

CONCLUSION

{20}    For the foregoing reasons, we affirm Defendant’s convictions.

{21}    IT IS SO ORDERED.

                                              ____________________________________
                                              TIMOTHY L. GARCIA, Judge

WE CONCUR:

_______________________________________
CYNTHIA A. FRY, Judge

_______________________________________
RODERICK T. KENNEDY, Judge

Topic Index for State v. Archuleta, No. 29976

AE                    APPEAL AND ERROR
AE-AR                 Appellate Review
AE-CE                 Cumulative Error
AE-FE                 Fundamental Error
AE-SB                 Substantial or Sufficient Evidence

CT                    CONSTITUTIONAL LAW
CT-CT                 Confrontation
CT-RF                 Right to Confrontation
CT-WR                 Waiver of rights

CL                    CRIMINAL LAW
CL-CL                 Controlled Substances
CL-PS                 Possession

CA                    CRIMINAL PROCEDURE
CA-CU                 Continuance
CA-CE                 Cumulative Error
CA-PS                 Pro Se
CA-RT                 Right to Confrontation
CA-RC                 Right to Counsel
