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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 33,885

5 JESSE MIGUEL BUSCHALLA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

8 Jerry H. Ritter, Jr., District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender

13 Santa Fe, NM

14 Sergio J. Viscoli, Assistant Appellate Defender

15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION

18 SUTIN, Judge.
2

1 {1} Defendant Jesse Miguel Buschalla filed a docketing statement, appealing from

2 his convictions for receiving stolen property and conspiracy to receive stolen property.

3 [DS 2; RP 1, 170] In this Court’s notice of proposed disposition, we proposed to

4 affirm. [CN 1, 11] Defendant filed a memorandum in opposition. We have given due

5 consideration to the memorandum in opposition and remaining unpersuaded, we

6 affirm Defendant’s convictions.

7 Due Process

8 {2} Defendant continues to argue that he was denied due process when the State

9 violated the district court’s order in limine that no testimony be elicited and no

10 reference be made to uncharged misconduct. [MIO 13] In our notice of proposed

11 disposition, we suggested that Defendant had failed to preserve his argument. [CN

12 2-3] In response, Defendant states that the argument was preserved because “trial

13 counsel objected during the trial as was noted . . . in the recitation of facts.” [MIO 13]

14 Defendant contends that the question is, therefore, “whether the mention of the

15 uncharged conduct prejudiced [Defendant’s] right to a fair trial.” [MIO 13] In other

16 words, Defendant contends that he was denied due process and did not receive a fair

17 trial because the State’s witnesses mentioned the uncharged conduct, even though the

18 court sustained Defendant’s objection to such testimony. [MIO 13-16] 
3

1 {3} Nowhere in Defendant’s recitation of facts, however, does Defendant show

2 where he preserved his argument that the witnesses’ raising the uncharged conduct

3 violated his due process or his right to a fair trial. Although Defendant did object to

4 the discussion of the uncharged conduct itself, he did not then argue that the State’s

5 failure to comply with the court’s order in limine denied Defendant due process or

6 impinged on his right to a fair trial. [See MIO 2-12]

7 {4} Specifically, prior to trial, in response to Defendant’s motion in limine, the

8 district court stated that witnesses were permitted to specify certain tools if they were

9 able to do so, even if such items were not included in the criminal information, but

10 they were not permitted to simply state that “bags were brought over.” [MIO 1] The

11 court further stated that witnesses were not permitted to “mention items that are not

12 charged unless the witness can tie specific items to . . . [D]efendant.” [MIO 1]

13 {5} At trial, one witness stated that “some of the tools and items” that had gone

14 missing “were recovered” and specified “[t]he pellet gun, jacket, torch, and . . . drill

15 set[.]” [MIO 2] Defendant objected to this testimony based on the court’s order in

16 limine, arguing that “it was unduly prejudicial to mention these items” and that “none

17 of these items were listed in the State’s Information.” [MIO 2-3] The court ordered

18 the State to “stick with items that were charged in the Information.” [MIO 3]
4

1 Defendant’s recitation of facts shows no further objections with regard to the second

2 witness’s testimony. [MIO 3]

3 {6} The next witness mentioned a dolly that had gone missing and was later

4 recovered in a nearby yard. [MIO 4] Defendant again objected based on the court’s

5 order in limine but the court allowed the State to discuss the dolly as it related to the

6 foundation the State was establishing. [MIO 4] Defendant’s recitation of facts shows

7 no further objections with regard to the second witness’s testimony. [MIO 4-5]

8 {7} According to Defendant’s recitation of facts, Defendant did not object to the

9 testimony of the remaining witnesses. [MIO 5-11] When Defendant moved for a

10 directed verdict, he argued simply that there was no proof that Defendant knew or

11 believed that the goods were stolen or that the goods were disposed of. [MIO 11-12]

12 Thus, although Defendant objected to specific testimony with regard to the two

13 witnesses, objections that were partially sustained as applicable to the order in limine

14 [MIO 2-5], nowhere in Defendant’s recitation of facts does he state that Defendant

15 moved the court for a new trial on the grounds that he was denied due process or a

16 right to a fair trial. [MIO 2-12] Defendant has failed to show us where in the record

17 such argument was preserved, and we will not search the record to support

18 Defendant’s arguments. See State v. Clements, 2009-NMCA-085, ¶ 19, 146 N.M.

19 745, 215 P.3d 54 (“This Court will not search the record to find whether an issue was
5

1 preserved where [the d]efendant does not refer this Court to appropriate transcript

2 references.”). As the issue was not preserved, we do not reach the merits. See

3 Woolwine v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (“To

4 preserve an issue for review on appeal, it must appear that appellant fairly invoked a

5 ruling of the trial court on the same grounds argued in the appellate court.”); see also

6 Rule 12-216(A) NMRA (“To preserve a question for review it must appear that a

7 ruling or decision by the district court was fairly invoked[.]”).

8 Renate Osterholt’s Testimony

9 {8} Defendant continues to argue that even though his arguments that the testimony

10 of Renate Osterholt denied him a fair trial and was unduly prejudicial were not

11 preserved, he was nevertheless denied a fair trial because of the testimony. [MIO 16-

12 17] In our notice of proposed disposition, we proposed to conclude that the issues

13 were unpreserved. [CN 3-7] Defendant has not asserted any new arguments, issues,

14 or authorities to allow this Court to consider the merits of the unpreserved argument

15 [MIO 16-17], so we hold that Defendant’s second and third arguments were not

16 preserved, and we do not reach the merits. See Woolwine, 1987-NMCA-133, ¶ 20

17 (“To preserve an issue for review on appeal, it must appear that appellant fairly

18 invoked a ruling of the trial court on the same grounds argued in the appellate court.”);
6

1 see also Rule 12-216(A) (“To preserve a question for review it must appear that a

2 ruling or decision by the district court was fairly invoked[.]”).

3 Sufficiency of the Evidence

4 {9} Defendant continues to argue that there was insufficient evidence to find that

5 Defendant knew or believed the property was stolen or to find that Defendant helped

6 dispose of it. [MIO 18] We have already addressed Defendant’s argument that there

7 was insufficient evidence to support a finding that Defendant knew or believed that

8 the goods were stolen in our notice of proposed disposition. [CN 7-11] Defendant

9 does not present new facts, arguments, or authority to convince us to reconsider our

10 proposed disposition. [MIO 18-19] As we have previously stated, there was

11 testimony from various witnesses that they suspected the items were stolen, which

12 may have led the jury to conclude the same. [CN 9] Defendant’s recitation of facts

13 does not dissuade us that our prior position was incorrect. [See MIO 6-10]

14 Accordingly, we refer Defendant to our responses in our notice of proposed

15 disposition. [CN 7-11]

16 {10} To the extent Defendant contends that everyone’s suspicions were assuaged by

17 Leo Carter’s assurances, despite the fact that no one seemed to know him very well,

18 and that no one, including Defendant who was with Carter the entire time Carter

19 attempted to dispose of the items, believed the items were stolen, the jury was free to
7

1 reject Defendant’s interpretation of the evidence. See State v. Rojo, 1999-NMSC-001,

2 ¶ 19, 126 N.M. 438, 971 P.2d 829 (stating that “the jury is free to reject [the

3 d]efendant’s version of the facts”); see also State v. Salas, 1999-NMCA-099, ¶ 13,

4 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any

5 conflict in the testimony of the witnesses and to determine where the weight and

6 credibility lie). We do not reweigh the evidence or substitute our judgment for that

7 of the fact-finder as long as there is sufficient evidence to support the verdict. State

8 v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156.

9 {11} With regard to Defendant’s argument that there was insufficient evidence to

10 support a finding that he helped dispose of the items, we note that Defendant did not

11 raise this issue in his docketing statement. Accordingly, we treat Defendant’s

12 inclusion of this new argument as a motion to amend the docketing statement, and we

13 deny the motion because the issue is not viable. See State v. Sommer, 1994-NMCA14 070, ¶ 11, 118 N.M. 58, 878 P.2d 1007 (denying a motion to amend the docketing

15 statement based upon a determination that the argument sought to be raised was not

16 viable).

17 {12} “In reviewing the sufficiency of the evidence, [an appellate court] must view

18 the evidence in the light most favorable to the guilty verdict, indulging all reasonable

19 inferences[,] and resolving all conflicts in the evidence in favor of the verdict.” State
8

1 v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The relevant

2 question is whether, after viewing the evidence in the light most favorable to the

3 prosecution, any rational trier of fact could have found the essential elements of the

4 crime beyond a reasonable doubt.” Id. (alteration, emphasis, internal quotation marks,

5 and citation omitted). “Substantial evidence review requires analysis of whether

6 direct or circumstantial substantial evidence exists and supports a verdict of guilt

7 beyond a reasonable doubt with respect to every element essential for conviction.”

8 State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86.

9 {13} As stated in Defendant’s recitation of the facts, Defendant was with Leo Carter

10 for a majority of the evening while Carter attempted to dispose of the items. [See

11 MIO 6-10] In addition, various witnesses only came into contact with Carter because

12 of their connection with Defendant. For example, Osterholt testified that she did not

13 know Carter, but that she had received a call from Defendant to come over that

14 evening. [MIO 6-7, 8] Osterholt additionally testified that her friend Chris Scott

15 permitted Carter to store the items at the house when Defendant “asked if one of his

16 friends” could do so. [MIO 6-7] Harry Holt also testified that he knew Defendant as

17 a friend and that he agreed to give his friend a ride early in the morning. [MIO 9]

18 When Holt arrived, Defendant was there with another person, Carter, who Holt stated

19 that he did not know. [MIO 9] Nevertheless, Holt agreed to give them a ride with the
9

1 bags of items—“enough bags that . . . Carter was sitting uncomfortably in the back

2 seat[.]” [MIO 9] When Holt was suspicious about whether the items were stolen, it

3 was Defendant who told Holt “that there was nothing that was stolen.” [MIO 9]

4 {14} Viewing the evidence in the light most favorable to the guilty verdict, we

5 conclude that this evidence is sufficient to support a finding that Defendant helped

6 Carter dispose of the items. See Cunningham, 2000-NMSC-009, ¶ 26; see also State

7 v. Dowling, 2011-NMSC-016, ¶¶ 22, 27, 150 N.M. 110, 257 P.3d 930 (recognizing

8 that, when proving intent or knowledge, “it is often the jury’s task to glean subjective

9 knowledge from the circumstances of the defendant’s act” and stating that

10 “circumstantial evidence alone can sustain a finding of subjective knowledge”); Kent,

11 2006-NMCA-134, ¶ 10 (“Appellate courts do not weigh the evidence or substitute any

12 judgment for that of the jury.”). Accordingly, Defendant’s argument is not viable.

13 We therefore reject the motion to amend his docketing statement to raise this

14 argument.

15 {15} For the reasons set forth here and in our notice of proposed disposition, we

16 affirm Defendant’s convictions.

17 {16} IT IS SO ORDERED.

18 __________________________________

19 JONATHAN B. SUTIN, Judge
10

1 WE CONCUR:

2 _______________________________

3 MICHAEL E. VIGIL, Chief Judge

4 _______________________________

5 M. MONICA ZAMORA, Judge