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State v. Roper10/30/2001
This case raises multiple issues concerning the sufficiency of the evidence for Defendant's various convictions and the manner in which he was sentenced for them. We hold that the evidence was in all respects sufficient and that the trial court did not err in any manner in its sentencing decisions.
Although charged with fifteen offenses, including attempted murder, arising out of a shooting from an automobile in which two young men were injured, Defendant was convicted only of two counts of aggravated assault with a deadly weapon (a sawed-off shotgun), one count of conspiracy to commit shooting from a vehicle, and one count of conspiracy to tamper with evidence. The latter count is not at issue in this appeal. Defendant contends that (1) the evidence was insufficient to support the conspiracy to shoot conviction; (2) conviction and sentencing on the two counts of aggravated assault violated double jeopardy; (3) none of the three reasons given by the trial court for increasing Defendant's sentence for aggravating factors was lawful; (4) double jeopardy was violated by using the same facts to convict Defendant for aggravated assault, enhance his sentence with the firearm enhancement, and increase the sentence for aggravating factors; (5) failure to submit the aggravating factors to the jury for a determination beyond a reasonable doubt violated Defendant's due process rights; (6) allowing the two co-defendants to testify against Defendant under plea agreements that provided for leniency violated Defendant's due process rights; and (7) the verdicts are inconsistent. We find no merit in any of the contentions and accordingly affirm.
FACTS
Nineteen-year-old Defendant and two friends, Paul Gutierrez and Samuel Lopez, were drinking in a motel in Albuquerque with Defendant's girlfriend and her sister. Defendant got into an argument with his girlfriend, and he and his friends left the motel to pick up girls. They had two guns in the car, a sawed-off shotgun and a nine-millimeter handgun. It was undisputed that Mr. Gutierrez was the driver of the car, Defendant was the front-seat passenger, and Mr. Lopez was in the back seat.
Mr. Gutierrez's car stopped at a fast-food restaurant where there were girls using a pay phone. One of the girls approached Defendant. She said he was drunk, "ugly," and "running his mouth"; she went back to where her friends were using the phone. In the meantime, there were some young men across the parking lot in front of another restaurant. Mr. Gutierrez was addressing them, "talking garbage" and asking them "what are you claiming?" This question was explained to mean that Mr. Gutierrez wanted to know to what gang the young men belonged. The young men could not hear, and one of them said "What?" Mr. Gutierrez apparently perceived that as a disrespectful response and responded by saying "What" himself in an angry fashion.
The next thing any of the witnesses knew, the shotgun and the nine-millimeter handgun were pointing out of the driver's window of Mr. Gutierrez's car, and multiple shots were fired from the handgun, hitting two of the young men in the parking lot, severely injuring one of them. Several witnesses testified that it appeared to them that the driver, Mr. Gutierrez, was holding the shotgun while the front passenger, Defendant, was shooting the handgun by leaning in front of the driver with the gun out the window. One witness and Mr. Lopez testified that Mr. Lopez had the shotgun. Mr. Lopez said he stuck the shotgun out of the car when Mr. Gutierrez was "talking garbage" to the victims because he wanted to show them that there was a gun in the car. Other witnesses said that Defendant had the shotgun, while Mr.
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