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


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                      NO. 28,912

 5 ESMEREGILDO ALMAGER,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
 8 Jerry H. Ritter, Jr., District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Corey J. Thompson, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                             MEMORANDUM OPINION

17 CASTILLO, Judge.

18       Defendant appeals from multiple convictions arising out of an incident in which

19 he and a co-defendant, Tiffany, burglarized a home, assaulted its residents, and
 1 subsequently attempted to avoid the police and destroy evidence. In this Court’s

 2 notice of proposed summary disposition, we proposed to affirm Defendant’s

 3 convictions and sentence.      Defendant has responded with a memorandum in

 4 opposition pursuant to several extensions of time.        We are not persuaded by

 5 Defendant’s arguments, and we now affirm.

 6 Cruel and Unusual Punishment

 7        Defendant claims that the district court imposed cruel and unusual punishment

 8 in sentencing. [DS 10] In this Court’s notice of proposed summary disposition, we

 9 noted that it did not appear that Defendant actually preserved the argument that his

10 sentence violated his right to be free of cruel and unusual punishment. [See RP 426-

11 31] Accordingly, we proposed to affirm. See State v. Wyman, 2008-NMCA-113, ¶

12 10, 144 N.M. 701, 191 P.3d 559 (declining to review a constitutional attack on a

13 sentence when the issue had not been preserved in the sentencing court), cert. granted,

14 2008-NMCERT-008, 145 N.M. 255, 195 P.3d 1267.

15        Defendant’s memorandum in opposition asserts that this issue may be raised for

16 the first time on appeal. [MIO 15] However, in State v. Burdex, 100 N.M. 197, 201,

17 668 P.2d 313, 317 (Ct. App. 1983), we held that a constitutional claim of cruel and

18 unusual punishment is non-jurisdictional and must be preserved for appellate review.

19 Defendant also suggests that a fundamental error analysis may apply [MIO 15], but


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 1 does not explain how Defendant’s sentence constituted fundamental error, as opposed

 2 to reversible error. Accordingly, we decline to address this claim, since it was not

 3 preserved and since Defendant has not developed his argument that his sentence

 4 constituted fundamental error. As we stated in our notice of proposed summary

 5 disposition, the imposition of consecutive habitual offender enhancements on multiple

 6 convictions does not violate the constitutional prohibition against cruel and unusual

 7 punishment, and the length of a sentence to be imposed is generally a legislative

 8 prerogative, such that “without a compelling reason, we do not impose our views

 9 concerning the appropriate punishments for crimes.” State v. Lucero, 104 N.M. 587,

10 594, 725 P.2d 266, 273 (Ct. App. 1986).

11 Fair Sentencing

12        Defendant claims that he was deprived of a fair sentence when evidence

13 relevant to his plea negotiations was introduced during sentencing. [DS 10] In this

14 Court’s notice of proposed summary disposition, we proposed to conclude that even

15 if it was error under Rule 5-304(F) NMRA to admit the evidence, the error was

16 harmless.

17        Defendant has responded, pursuant to State v. Franklin, 78 N.M. 127, 129, 428

18 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct.

19 App. 1985). [MIO 18] As Defendant’s memorandum in opposition does not


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 1 demonstrate that the introduction of this evidence prejudiced him, we hold that any

 2 error was harmless. See Rule 5-113(A) NMRA (“Error in either the admission or the

 3 exclusion of evidence and error or defect in any ruling, order, act or omission by the

 4 court or by any of the parties is not grounds for granting a new trial or for setting aside

 5 a verdict, for vacating, modifying or otherwise disturbing a judgment or order, unless

 6 refusal to take any such action appears to the court inconsistent with substantial

 7 justice.”).

 8 Evidence of the MySpace Pages

 9        Defendant asserts that the district court abused its discretion in refusing to

10 permit Defendant to introduce printouts of Tiffany’s MySpace pages in order to show

11 that she lied about her age and portrayed herself as a gangster and someone who took

12 illegal drugs. [DS 9, 10] In our notice, we proposed to conclude that Defendant failed

13 to preserve an argument at trial that he had a Sixth Amendment right to have this

14 evidence admitted. In Defendant’s memorandum in opposition, he does not assert that

15 the argument was preserved. Therefore, we conclude that this claim of error does not

16 warrant reversal. See Rule 12-216 NMRA (setting out requirement that issues be

17 preserved for appellate review).

18 Sufficiency of the Evidence

19        Defendant claims that there was insufficient evidence of the value of the cash


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 1 and jewelry that were stolen. [DS 10] “In reviewing the sufficiency of the evidence,

 2 we must view the evidence in the light most favorable to the guilty verdict, indulging

 3 all reasonable inferences and resolving all conflicts in the evidence in favor of the

 4 verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

 5 In our notice, we proposed to find that substantial evidence supported a finding that

 6 the value of the cash and jewelry was more than $20,000.

 7        In Defendant’s memorandum in opposition, he argues that because there was

 8 no evidence of the age and condition of the jewelry, there was insufficient evidence

 9 to establish beyond a reasonable doubt the market value of the jewelry at the time it

10 was stolen. [MIO 21] We disagree. Defendant acknowledges that Alice Seeley

11 testified that $16,500 in cash was taken from the safe and that jewelry worth at least

12 $85,500 was stolen. [MIO 21] This Court has previously stated that “an owner of

13 personal property may testify concerning the value of the property and that such

14 testimony is sufficient to support a jury’s determination of value.” State v. Hughes,

15 108 N.M. 143, 145-46, 767 P.2d 382, 384-85 (Ct. App. 1988). We therefore conclude

16 that Seeley’s testimony was sufficient to establish that the value of the missing items

17 was at least $20,000.

18 Double Jeopardy

19        Defendant claims that the district court subjected him to double jeopardy in “not


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 1 merging certain counts.” [DS 11] A double jeopardy analysis in a double-description

 2 case requires this Court first to determine whether the conduct was unitary, and then,

 3 if it is, to determine whether the Legislature intended multiple punishments for the

 4 unitary conduct. State v. DeGraff, 2006-NMSC-011, ¶ 26, 139 N.M. 211, 131 P.3d

 5 61.

 6        Defendant contends, pursuant to Franklin and Boyer, that all of his conduct at

 7 the victims’ house was unitary, and that all of his acts at the motel were a separate

 8 event. [MIO 13-14] In our notice of proposed summary disposition, we stated that

 9 after examining all the charges relating to conduct that occurred in the house, we did

10 not believe that any were based on conduct that was unitary and for which the

11 Legislature did not intend separate punishments. In Count 1, Defendant was charged

12 with aggravated burglary for entering the victims’ home armed with a firearm and

13 with the intent to commit a theft. [RP 179] In Count 2, Defendant was charged with

14 larceny for stealing money and jewelry. [RP 180] In Count 3, Defendant was charged

15 with aggravated battery with a deadly weapon for hitting Seeley with a gun. [RP 184]

16 In Count 6, Defendant was charged with aggravated assault for threatening to shoot

17 Alice Seeley. [RP 187] In Count 7, Defendant was charged with aggravated assault

18 for actually shooting at David Hall. [RP 188] In Count 8, Defendant was charged

19 with transportation of a rifle by a felon. [RP 189] In Count 9, Defendant was charged


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 1 with possession of a handgun by a felon. [RP 190] These are all the charges relating

 2 to when Defendant was in the home. (We do not believe that the conspiracy charge

 3 relates to events in the home, since, based on the facts of this case, the evidence

 4 suggested that Defendant and Tiffany would have had to agree to commit the illegal

 5 acts prior to entering the home.)

 6        As to the events that occurred in the motel, we also stated in our notice that we

 7 did not believe that these were unitary: In Count 5, Defendant was charged with

 8 tampering with evidence for burning and hiding money in the hotel room. [RP 186]

 9 In Count 11, he was charged with resisting or evading an officer. [RP 192] And in

10 Count 12, he was charged with criminal damage to property for damaging property

11 at the motel. [RP 193]

12        Defendant has not provided this Court with any authority to suggest that all of

13 the acts were “unitary” under a double jeopardy analysis simply because they occurred

14 in a single location on a single evening. Accordingly, we hold that neither the acts in

15 the home nor the acts in the motel were unitary and that Defendant’s multiple

16 convictions did not violate double jeopardy concerns.

17 The Amended Indictment

18        Defendant claims that the district court erred in permitting the prosecutor to

19 amend the indictment to change Count 3 from aggravated battery for hitting Seeley


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 1 with the butt of a rifle to aggravated battery for hitting Seeley with the butt of a

 2 handgun. [DS 11] Rule 5-204(C) NMRA provides that a district court “may at any

 3 time allow the indictment or information to be amended in respect to any variance to

 4 conform to the evidence.” It is only if “the court finds that the defendant has been

 5 prejudiced by an amendment” that “ the court may postpone the trial or grant such

 6 other relief as may be proper under the circumstances.” Id. In this case, the district

 7 court concluded that Defendant would not be prejudiced by the amendment. [RP 385]

 8 In our notice of proposed summary disposition, we proposed to hold that the district

 9 court did not abuse its discretion in permitting the amendment. See State v. Maestas,

10 2007-NMCA-155, ¶ 13, 143 N.M. 104, 173 P.3d 26 (stating that a district court’s

11 decision to allow an amendment to a complaint is reviewed for an abuse of discretion).

12        Defendant has responded, pursuant to Franklin and Boyer, and asserts that he

13 was deprived of fair notice of the charges in this case. [MIO 22-23] We are not

14 persuaded. Defendant does not assert that his defense was prejudiced by the

15 substitution of one type of weapon for another, and “[a] court does not abuse its

16 discretion by allowing an amendment that includes facts subsequently discovered and

17 timely communicated when there is no change to the elements of the offense charged.”

18 Maestas, 2007-NMCA-155, ¶ 13.

19        Therefore, for the reasons stated in this opinion and in our notice of proposed


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1 summary disposition, we affirm Defendant’s convictions and sentence.

2       IT IS SO ORDERED.



3                                            ________________________________
4                                            CELIA FOY CASTILLO, Judge

5 WE CONCUR:



6 ________________________________
7 RODERICK T. KENNEDY, Judge



8 ________________________________
9 TIMOTHY L. GARCIA, Judge




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