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State v. Fernandez4/14/1994
SCRA 11-410 in initiating this contact. Anderson, N.M. at , P.2d at .
It is also significant that defense counsel made statements in his opening remarks to the jury that tracked Defendant's admissions in the December 5 letter. During his opening statement, defense counsel said, "Clearly [Defendant] was careless driving for not putting his signal on; because of that one hesitation, David Fernandez admits the careless driving." Counsel went on to state that "David Fernandez will tell you that when he saw the police officer that night . . . he was uncooperative, and we'll agree with the prosecution on the point that he was uncooperative and therefore he was guilty of being uncooperative or as the prosecutor said resisting arrest that night. . . ."
"Judicial discretion is abused if the action taken by the trial court is arbitrary or capricious. Such abuse of discretion will not be presumed; it must be affirmatively established.", (citations omitted); see (abuse of discretion requires the trial Judge's action to be "obviously erroneous, arbitrary, or unwarranted"). We do not find an abuse of discretion in admitting the December 5 letter.
IV. SUFFICIENCY OF EVIDENCE
Defendant challenges the sufficiency of the evidence supporting his conviction for intimidating a witness, on two grounds. Defendant first argues, as he did throughout trial, that the State failed to prove that Officer Romo was actually intimidated or threatened as a result of Defendant's conduct. Second, Defendant challenges the sufficiency of the evidence underlying the charge generally.
Defendant asserts that Romo testified that he was not intimidated by Defendant's calls and letters, and that Defendant never requested Romo to testify falsely, or to not testify, with respect to the DWI charge. These evidentiary facts do not persuade us that the evidence was insufficient to support conviction for intimidation of a witness.
Under its own terms, NMSA 1978, Section 30-24-3(A)(2) (Cum. Supp. 1993) does not include "actual intimidation" by a victim as an element of the offense. The State was not, then, required to prove that Romo was intimidated; it was sufficient that the prosecution established that Defendant threatened Romo. Cf. ) (no basis for reading exception into statute which is plain on its face). In this sense, Section 30-24-3(A)(3) does not require proof that an accused's act is successful. {PA}
Page 680} See Black's Law Dictionary 1480 (6th ed. 1990) ("threat" defined as a declaration of intent "to work injury to the person, property, or rights of another, with a view of restraining such person's freedom of action"). Moreover, neither Section 30-24-3(A)(3) nor the instruction given to the jury required proof that Defendant requested any action by Romo; the operative verbs are "threatened or intimidated."
Officer Romo testified at trial that, up until the time he received Defendant's January 6 letter, he had no reason to believe he was not eligible for the food commodity program. Romo further testified that (a) he considered the letter directly related to Defendant's pending case; (b) it was not Defendant's job as Taos County Commissioner to monitor the food program; and (c) at the time he received the letter he was still the arresting and prosecuting officer and planned to testify against Defendant. There is sufficient evidence that Defendant "threatened or intimidated" Officer Romo. See (sufficiency of the evidence requires substantial evidence such that a rational jury could have found each element of the crime to be established beyond a reasonable doubt).
V. MOTI
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