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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 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

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date.

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

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 29,800

10 ISMAEL VASQUEZ,

11 Defendant-Appellant.

12 `

13 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

14 Gary M. Jeffreys, District Judge

15 Gary K. King, Attorney General

16 Santa Fe, NM

17 for Appellee

18 Law Office of Craig C. Kling

19 Craig C. Kling

20 San Diego, CA

21 for Appellant

22 MEMORANDUM OPINION

23 WECHSLER, Judge.

24 Defendant appeals from his convictions for armed robbery, conspiracy to
2

1 commit armed robbery, and possession of a firearm by a felon. Defendant filed a

2 docketing statement that was rejected by this Court in part because Defendant failed

3 to provide a description of the facts necessary to evaluate his claims of error.

4 Defendant then filed an amended docketing statement that again failed to provide the

5 facts necessary to evaluate his claims. In this Court’s notice of proposed summary

6 disposition, we proposed to affirm. Defendant has timely filed a memorandum in

7 opposition, pursuant to an extension of time. We have considered Defendant’s

8 arguments, and as we are not persuaded by them, we affirm. 

9 Sufficiency of the Evidence 

10 Defendant challenges the sufficiency of the evidence as to all of his convictions.

11 [Amended DS 5; MIO 1-4] “In reviewing the sufficiency of the evidence, we must

12 view the evidence in the light most favorable to the guilty verdict, indulging all

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

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

15 In this Court’s notice of proposed summary disposition, we indicated that we would

16 only address Defendant’s conviction for armed robbery, as this was the only charge

17 for which Defendant provided the facts relevant to his claim. In Defendant’s

18 memorandum in opposition, he makes arguments as to all three of his convictions. He

19 fails, however, to persuade us that summary affirmance is inappropriate.
3

1 Defendant contends, pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d

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

3 1985), that there was insufficient evidence to support his convictions for armed

4 robbery and conspiracy to commit armed robbery because the State failed to establish

5 that he was one of the people who perpetrated the crimes. [Amended DS 5; MIO 1]

6 We conclude that there was sufficient evidence to support these convictions. A

7 witness testified that both Defendant and Defendant’s accomplice described the

8 robbery to him and that each said that Defendant took part in the robbery. [Amended

9 DS 3, 5] Furthermore, Defendant’s hair was found in a cap located several blocks

10 from the scene of the crime along with a pile of clothes that matched the description

11 of the robber. [Amended DS 4] Although Defendant attacks the witness’s credibility

12 because he was a jailhouse informant, it was for the jury to weigh this evidence, not

13 this Court. See State v. Sosa, 2000-NMSC-036, ¶ 8, 129 N.M. 767, 14 P.3d 32

14 (observing that the “credibility of witnesses is for the jury” to determine).

15 Defendant asserts that his conviction for being a felon in possession of a firearm

16 cannot stand because there was no evidence that he was the person wielding the gun.

17 [Amended DS 6; MIO 3-4] In this Court’s proposed summary disposition, we stated

18 that we were unable to address this argument because Defendant had not explained

19 what evidence was presented regarding the use of a gun. See Rule 12-208(D)(3)
4

1 NMRA. In Defendant’s memorandum in opposition, he argues that the claim in the

2 docketing statement that there was no evidence presented that Defendant handled the

3 gun must be taken as true and should provide a basis for reversal. See State v. Ibarra,

4 116 N.M. 486, 489, 864 P.2d 302, 305 (Ct. App. 1993) (“The facts contained in the

5 docketing statement are accepted as the facts of the case unless they are challenged.”).

6 We disagree. 

7 Counsel must set out all relevant facts in the docketing statement, including

8 those facts supporting the district court’s judgment. Thornton v. Gamble, 101 N.M.

9 764, 769, 688 P.2d 1268, 1273 (Ct. App. 1984). Here, neither Defendant’s docketing

10 statement nor his memorandum in opposition gives this Court any indication about

11 what facts were presented in the district court regarding the robbery. Defendant has

12 had three opportunities to describe the necessary facts, as we would have been willing

13 to rely on any description of the facts in Defendant’s initial docketing statement, his

14 amended docketing statement, or his memorandum in opposition. His claim that if

15 trial counsel indicates there was no evidence presented that Defendant handled a gun,

16 that statement must itself be taken as a fact is not persuasive in this case. If trial

17 counsel had described all the relevant evidence presented and then made such a

18 statement, we might view the case differently. But without such a factual description,

19 trial counsel’s statement is simply a conclusion that trial counsel believes that the
5

1 evidence was insufficient to support this element, not a statement about what evidence

2 was in fact presented in the district court. 

3 We also note that the amended docketing statement is equivocal as to whether

4 no evidence on the subject was presented since what the docketing statement actually

5 says at one point: “nor was there any physical evidence to show that [Defendant]

6 possessed the gun used in the crime.” [Amended DS 5 (emphasis added)] Physical

7 evidence is not required in order to prove a fact beyond a reasonable doubt—the jury

8 could have properly relied on the testimony of the informant about what Defendant

9 and his co-conspirator told the informant about the crime or on other direct or

10 circumstantial evidence to establish this element of the offense. Furthermore, the

11 State was not required to prove that Defendant physically possessed the gun so long

12 as he was in constructive possession of it. See State v. Garcia, 2005-NMSC-017, ¶¶

13 13-25, 138 N.M. 1, 116 P.3d 72.

14 As Defendant has not explained what evidence was actually presented in the

15 district court, we cannot evaluate it, and we decline to either propose summary

16 reversal or to assign the case to the general calendar based on trial counsel’s failure

17 to meet his obligations. It is Defendant’s burden to demonstrate error on appeal. State

18 v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that there

19 is a presumption of correctness in the proceedings in the district court and that the
6

1 burden of demonstrating error lies with the appellant). Simply raising the unsupported

2 possibility of error is not enough. This is not a case in which trial counsel has made

3 a good faith allegation that he cannot recall the facts necessary to provide this Court

4 with the information it requires. See Ibarra, 116 N.M. at 488, 864 P.2d at 304 (stating

5 that “when counsel alleges a legitimate inability to recall and to reconstruct the events

6 through available non-transcript alternatives, this Court will frequently allow time and

7 access to a recording or transcript”). And this Court has given Defendant more than

8 one opportunity to appropriately present his claim of error by first rejecting

9 Defendant’s initial docketing statement for its failure to describe the necessary facts,

10 and then indicating in our notice of proposed summary disposition that the failure of

11 the amended docketing statement to fully present the facts would provide a basis for

12 affirmance.

13 The Refusal to Sever 

14 Defendant asserts that the district court erred in refusing to sever the charge for

15 possession of a firearm by a felon. [Amended DS 6; MIO 4] In our order rejecting

16 Defendant’s docketing statement and in our notice of proposed summary disposition,

17 we stated that Defendant failed to provide this Court with an adequate description of

18 the facts necessary to evaluate this claim because he had not explained the facts

19 necessary to evaluate whether he was prejudiced. Our Supreme Court has stated that
7

1 the failure to sever a felon in possession of a firearm charge will generally constitute

2 error, since evidence of a prior conviction is inadmissible if the defendant does not

3 testify. See State v. Dominguez, 2007-NMSC-060, ¶¶ 10-12, 142 N.M. 811, 171 P.3d

4 750. However, our Supreme Court has also made clear that such error is not

5 reversible in the absence of a showing of actual prejudice. See id. ¶ 13. Because the

6 error is itself the admission of evidence of a prior conviction, this alone cannot be

7 sufficient to establish prejudice, as Defendant suggests. Dominguez cites State v.

8 Gonzales, 113 N.M. 221, 824 P.2d 1023 (1992), with approval to indicate the type of

9 prejudice that must be shown in a case involving the failure to sever a felon in

10 possession charge. 

11 In Gonzales, our Supreme Court held that the defendant did not show he was

12 prejudiced by the failure to sever a felon in possession charge when the jury was not

13 given details surrounding the conviction, the prior conviction was very dissimilar to

14 the charges being tried, and the jury was twice given limiting instructions that they

15 were presumed to have followed. 113 N.M. at 230, 824 P.2d at 1032. As Defendant

16 has not provided this Court with a description of the evidence introduced regarding

17 the prior felony and any oral instructions that may have been given, we are unable to

18 evaluate his claim of prejudice and we hold that Defendant has not demonstrated that

19 reversal is warranted. Although Defendant argues that the jury instruction on the
8

1 felon in possession charge shows that he was prejudiced, nothing in the jury

2 instruction provides any information regarding the nature of the prior felony. [RP

3 161] Therefore, pursuant to Gonzales, the jury instruction is not prejudicial. 

4 Accordingly, for the reasons stated in this opinion and the notice of proposed

5 summary disposition, we affirm. 

6 IT IS SO ORDERED.

7 ________________________________

8 JAMES J. WECHSLER, Judge

9 WE CONCUR:

10 __________________________________

11 MICHAEL D. BUSTAMANTE, Judge

12 __________________________________

13 RODERICK T. KENNEDY, Judge