IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 29,123 4 CHRISTOPHER DURAN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 Ralph D. Shamas, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 Allison H. Jaramillo, Assist ant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 KENNEDY, Judge. 17 Defendant challenges the district court’s denial of his motion for directed 18 verdict and argues the district court improperly admitted certain statements and 19 photographs. We issued a calendar notice pr oposing to affirm the district court on 20 April 8, 2009. Defendant tim ely filed, after extension, a memorandum in opposition 212 on June 8, 2009. We remainunpersuaded by Defendant’s arguments and affirm the 1 district court. 2 With regard to the directed verdict, “[t]he question presented by a directed 3 verdict motion is whether there was substantial evidence to support the charge.” State 4 v. Dominguez , 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct. App. 1993) (citation 5 omitted). When reviewing a challenge to the sufficiency of the evidence to support 6 a conviction, we must determine “whether substantial evidence of either a direct or 7 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt 8 with respect to every element essential to a conviction.” State v. Sutphin , 107 N.M. 9 126, 131, 753 P.2d 1314, 1319 (1988). This Court “views the evidence in a light most 10 favorable to the verdict, considering thatthe State has the burden of proof beyond a 11 reasonable doubt.” State v. Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72 12 (citation omitted). “This court does not weigh the eviden ce and may not substitute its 13 judgment for that of the fact finder so l ong as there is sufficient evidence to support 14 the verdict.” Sutphin, 107 N.M. at 131, 753 P.2d at 1319 (citation omitted). However, 15 we also observe that evidence equally cons istent with two inferences does not, without 16 more, provide a basis for adopting a hypothesis. Garcia, 2005-NMSC-017, ¶ 12. 17 Defendant was convicted of possession of a firearm by a felon. To establish 18 Defendant’s guilt, the State was required to prove that: (1) Defendant possessed a 193 firearm; (2) Defendant, in the preceding ten years, was convicted and sentenced to one 1 or more years imprisonment by a court of th e United States or by a court of any state 2 and has not been pardoned of the conviction by the appropriate authority; and (3) the 3 offense occurred on or about the 24th day of February, 2008. UJI 14-701 NMRA. 4 Only the first element appears to have been appealed in the current case. Because 5 Defendant was not in actual possession of the gun at the time he was arrested, his 6 conviction was appare ntly based on a theory of constructive possession. For 7 constructive possession, the State must pr ove both that Defendant knew the gun was 8 present in the car and exercised control over it. Garcia, 2005-NMSC-017, ¶ 13; UJI 9 14-130 NMRA. [RP 60] “Proximity al one does not constitute possession.” Garcia, 10 2005-NMSC-017, ¶ 13 (citation omitted). We therefore consider whether there was 11 a reasonable analysis the jury could have used to find knowledge and control. Id. 12 Applying the standard desc ribed above, we turn to the evidence presented 13 below, as reflected in the docketing stat ement and memorandum in opposition. [DS 14 3-15; MIO 1-10] Defendant provides a lengthy description of the testimony 15 presented at trial. Our review of the te stimony suggests the jury could have, after a 16 reasonable analysis, determined Defendant had knowledge and control of the firearm 17 found in the car. First, Tricia Hutson testif ied she saw a red Ford Focus pull up to the 18 restaurant and the driver open the trunk and re trieve a gun. [DS 4; MIO 1] She also 194 testified she was familiar withguns and that she was sure she saw the driver withdraw 1 a gun. [Id.] She then atte mpted to call 911. [Id.] Wh en she was unable to reach 911, 2 she called dispatch and relayed the licenseplate number of the car. [DS 4; MIO 2] 3 Moreover, Barry Nateman testified the driv er of the car was male and that Mr. 4 Nateman followed the car from the parking lot until it was pulled over by police, only 5 losing sight of the car briefly. [DS 6; MIO 4] While neither Ms. Hutson nor Mr. 6 Nateman could identify Defendant, Ginnie Salas testified Defendant was the driver 7 [DS 8-9; MIO 5], as did Officer Aldana. [DS 11; MIO 7] Officer Aldana also 8 testified he could see a gun in the car, pos itioned between the passenger seat and the 9 adjustment lever in the front seat. [Id.] 10 We acknowledge some of the witnesses offered contradictory testimony, 11 including testimony that the gun belonged to someone other than Defendant. [DS 14] 12 Defendant urges us to find Ms. Hutson’s testimony not credible. [MIO 12] We 13 reiterate, however, that we do not enga ge in re-weighing the credibility of each 14 witness. See generally State v. Armijo , 2005-NMCA-010, ¶ 4, 136 N.M. 723, 104 15 P.3d 1114 (“[I]t is for the fact-finder to eval uate the weight of the evidence, to assess 16 the credibility of the various witnesses, a nd to resolve any conflicts in the evidence; 17 we will not substitute our judgment as to suchmatters.”). We hold that Ms. Hutson’s 18 testimony, while contradicted by other testimony, was enough fo r a reasonable jury 195 to find an inference of knowledge and control under these circumstances. See State 1 v. Garcia, 2005-NMSC-017, ¶ 24. The jury coul d have reasonably concluded the 2 testimony proved Defendant, as both the sole male occupant of the vehicle and the 3 driver, was also the same individual that Ms. Hutson had seen handling the gun 4 minutes before and that Mr. Nateman had followed. We therefore hold the testimony 5 in this case satisfied the State’s burden of proof with respect to each of the elements 6 of the offense. 7 Turning to Defendant’s next issue, Defendant argues th e district court erred in 8 permitting Ms. Hutson to testify she heard a woman yelling at Defendant “Put that 9 away. You don’t need that here.” [MIO 1] The State apparently argued both that the 10 statement was an excited utterance and that the statement was not offered for the truth 11 of the matter. [MIO 2] Defendant argued that if the statement were not offered for 12 the truth of the matter, it was irrelevant. [I d.] The district court allowed the testimony 13 as “an excited utterance made by an unavailable witness.” [Id.] 14 “We review the admission of evidence under an abuse of discretion standard 15 and will not reverse in the ab sence of a clear abuse.” State v. Sarracino , 1998-NMSC16 022, ¶ 20, 125 N.M. 511, 964 P.2d 72. We have previously held the district court has 17 broad discretion in determini ng whether a statement qualifie s as an excited utterance 18 as defined by Rule 11-803(B) NMRA. See State v. Hernandez , 1999-NMCA-105, ¶ 196 10, 127 N.M. 769, 987 P.2d 1156 (noting the district court's assessment of whether a 1 statement meets this definition should be guided by consideration of a variety of 2 factors, including: “(1) the time lapse be tween the startling event and the statement, 3 (2) whether the declarant had an opportunity to fabricate the stat ement, (3) the mental 4 and physical state of the declarant at the time of the statement, (4) whether the 5 statement was self-serving, and (5) whether the statement was made in response to an 6 inquiry”). We also reiterate we will uphold the district court’s ruling if it is right for 7
any reason. See, e.g. , State v. Gallegos , 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 8 P.3d 828 (holding that the appellate court will affirm the district court’s decision if it 9 is right for any reason, so long as it is not unfair to the appellant). 10 We first note we doubt Ms. Hutson’s st atement constituted hearsay at all. 11 While the limited record lacks clarity withregard to the State’s argument, it is 12 conceivable the statement was offered as part of the factual events leading up to Ms. 13 Hutson’s decision to call 911, rather than to prove the truth of the matter asserted, i.e., 14 that someone was told to “put that [gun] away. You don’t need that [ gun] here.” As 15 such, the statement would not be hearsay, nor irrelevant, and its admission would have 16 been proper. 17 Further, we note that evenwere the admission of this statement improper, any 18 error was harmless error. Our Supreme Court, in State v. Barr , No. 30,191, slip op. 197 at ¶¶ 53, 56 (N.M. Ct. App. May 22, 2009), recently clarified the standard for 1 determining whether error constitutes harmle ss error. For non-c onstitutional error, a 2 reviewing court should only conclude that “error is harmless when there is no 3 reasonable probabilitythe error affected the verdict.” Id. ¶ 53 (emphasis in original). 4 “Non-constitutional error is revers ible only if the reviewing court is able to say, in the 5 context of the specific evidence presented attrial, that it is reasonably probable that 6 the jury’s verdict would have b een different but for the error.” Id. To decide whether 7 the error was harmless, a reviewing court should consider whether there is (1) 8 substantial evidence to support the conviction without reference to the improperly 9 admitted evidence; (2) such a disproportionate volume of permissible evidence that, 10 in comparison, the amount of improper ev idence will appear minuscule; and (3) no 11 substantial conflicting evidence to discredit the State’s testimony. Id. ¶ 56. 12 The purpose of this analysis is not to re-judge the defendant. “The harmless 13 error analysis does not center on whether, inspite of the error, the right result was 14 reached. Rather, the focus is on whether the verdict wa s impacted by the error.” Id. 15 ¶ 57. Here, we do not see how this particul ar statement would affect the jury’s 16 decision. Defendant himself suggests the testimony is irrelevant; he suggests the 17 woman’s statement could have meant “put your wallet away, I am paying for dinner.” 18 [MIO 15] Rather, it is Ms. Hutson’s othe r testimony, that she saw Defendant pull a 198 gun out of the trunk, which, if improperl y admitted, might have resulted in a 1 reasonable probability of the statement impacti ng the jury’s verdict. That is not the 2 case here. While there may have been some conflicting evidence, we hold substantial 3 evidence existed to support the conviction ev en without the statement in question and 4 that, given the other testimony, any error in admitting the statement was “minuscule.” 5 Finally, with regard to the photographs , Defendant argues the district court 6 erred in admitting multiple photographs of the same gun. [MIO 20-21] Photographs 7 are generally relevant and admissible fo r the purpose of clarifying and illustrating 8 testimony. State v. Hutchinson , 99 N.M. 616, 624-25, 661 P.2d 1315, 1323-24 (1983) 9 (citations omitted) (reiterati ng photographs may serve as corroboration of witness 10 testimony). The fact that a photograph is cumulative or repetitious does not 11 necessarily render it inadmissible as long as it is reasonably relevant to the issues of 12 the case. Id. Defendant fails to provideus with any facts indicating the district court 13 abused its discretion by allowing the introduction of the photos of the gun found in 14 the car driven by Defendant. Nor has he explained how he might have been 15 prejudiced by their admission. 16 For the foregoing reasons, we affirm the district court. 17 IT IS SO ORDERED. 18

___________________________________ 199 RODERICK T. KENNEDY, Judge 1 WE CONCUR : 2

___________________________ 3 CYNTHIA A. FRY, Chief Judge 4

___________________________ 5 JONATHAN B. SUTIN, Judge 6