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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 27,715

5 ARMANDO J. ANDRADE,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

8 Joe Parker, District Judge

9 Gary K. King, Attorney General

10 Andrea Sassa, Assistant Attorney General

11 Santa Fe, NM

12 for Appellee

13 Albright Law and Counseling

14 Jennifer R. Albright

15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION

18 GARCIA, Judge.

19 This appeal arises out of Defendant’s conviction for one count of criminal

20 damage to property in violation of NMSA 1978, Section 30-15-1 (1963) and one

21 count of shoplifting in violation of NMSA 1978, Section 30-16-20 (2006). Defendant

22 raises several issues on appeal: (1) whether the district court erred in failing to

23 provide a remedy in response to the State’s failure to file a witness list, (2) whether
2

1 the district court erred in allowing evidence of Defendant’s prior larceny conviction,

2 (3) whether the district court erred in denying Defendant’s motion for directed verdict,

3 and (4) whether fundamental error occurred when the district court allowed the State

4 to discuss the theory of transferred intent. We affirm the district court on all issues.

5 FACTS AND PROCEDURES

6 On June 19, 2006, Defendant and his girlfriend entered Stansell’s Thriftway in

7 Clovis, New Mexico. Mr. Stansell, the store owner, and a store employee saw

8 Defendant put two peanut brittle patties into his clothing. Mr. Stansell then

9 approached Defendant and asked Defendant for the patties. After refusing once,

10 Defendant gave Mr. Stansell the patties, and Defendant began to move toward the

11 doorway in an attempt leave the store. Mr. Stansell told Defendant that he had to

12 remain in the store because the police had been notified. As Defendant continued

13 trying to leave the store, store employees blocked the exit doorway. At that point,

14 Defendant kicked his foot behind him in the direction of one of the store employees.

15 He missed the employee and kicked the front door of the store, cracking the glass in

16 the door. Mr. Stansell and the store employees grabbed Defendant and held him

17 outside the store until police arrived.

18 Defendant was convicted in magistrate court of criminal damage to property

19 and shoplifting. Defendant appealed his convictions to the district court pursuant to
3

1 Rule 6-703 NMRA. The district court proceeded with a trial de novo where a jury

2 found Defendant guilty on both counts. Defendant appeals his convictions in the

3 district court. We review each of Defendant’s arguments. 

4 DISCUSSION

5 The District Court Did Not Abuse Its Discretion in Refusing to Provide a

6 Remedy for the State’s Failure to File a Witness List

7 At the outset of his trial in district court, Defendant orally objected because the

8 State failed to present a witness list prior to trial. The district court denied Defendant’s

9 objection and proceeded with trial. Defendant now argues that the State violated Rule

10 5-501(A)(5) NMRA. Defendant claims that he was prejudiced by not having the list

11 of material witnesses before trial and that he was unable to properly prepare for trial.

12 Specifically, Defendant argues that the outcome may have changed if he had known

13 the names of witnesses at an earlier date. Defendant asserts that he would have been

14 able to discover the relationships between the officers and the store owner, which

15 could have caused the witnesses’ testimony to be compromised. Defendant argues in

16 his brief that he allegedly discovered one of the officers was related to Mr. Stansell,

17 but only made this discovery after the trial was completed. The State counters that its

18 failure to provide Defendant with a new list of witnesses was inadvertent and that

19 Defendant was not prejudiced because he had notice from the magistrate court of the

20 witnesses’ names prior to trial and was prepared for cross-examination prior to trial.
4

1 We review the district court’s decision for any abuse of discretion. State v.

2 McDaniel, 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701. “In order to find abuse

3 of discretion, we must conclude that the decision below was against logic and not

4 justified by reason.” Id. In determining whether the district court’s actions require

5 reversal, we consider the following four factors:

6 (1) whether the [s]tate breached some duty or intentionally deprived the

7 defendant of the evidence[,] (2) whether the improperly non-disclosed

8 evidence was material[,] (3) whether the non-disclosure of the evidence

9 prejudiced the defendant[,] and (4) whether the [district] court cured the

10 failure to timely disclose the evidence.

11 Id. ¶ 8 (internal quotation marks and citation omitted). Defendant focuses primarily

12 on factors one and three, and therefore we confine our analysis to those two factors.

13 We consider whether the State intentionally failed to notify Defendant of its intended

14 witnesses and whether Defendant was prejudiced when the State inadvertently failed

15 to provide another list of witnesses to Defendant pursuant to Rule 5-501(A)(5). We

16 conclude that, although the State inadvertently failed to provide another witness list,

17 Defendant had notice of the names of the witnesses prior to trial and he was not

18 prejudiced.

19 Prior to the district court trial, Defendant knew the names of the State’s

20 witnesses because all of the witnesses who testified in the magistrate court trial also

21 testified a second time in district court. All four witnesses were fully and adequately
5

1 disclosed to Defendant before jurisdiction ever transferred to the district court.

2 Defendant does not argue that he did not have proper notice of the witness information

3 prior to the commencement of the magistrate trial. Finally, the witnesses were issued

4 subpoenas prior to trial, and copies of the subpoenas were in the district court file.

5 Defendant fails to establish that he suffered any prejudice at trial based upon

6 the lack of notice of any witnesses. Defendant was not deprived of the opportunity

7 to prepare for and to cross-examine the State’s witnesses. See State v. Quintana, 86

8 N.M. 666, 668-69, 526 P.2d 808, 810-11 (Ct. App. 1974) (stating that one of the

9 purposes of requiring the state to disclose the names of witnesses prior to trial is to

10 allow the defendants the opportunity to prepare for cross-examination). The district

11 court trial was Defendant’s second chance to cross-examine the witnesses because he

12 had the earlier opportunity to confront the same witnesses during his trial in

13 magistrate court. In addition, between the first and second trial, Defendant had ample

14 additional time to investigate any relationships between the witnesses that could have

15 biased their testimony. Defendant cannot now blame the State for any deficiencies in

16 his pre-trial investigation and preparations.

17 Defendant has failed to provide any authority to support his argument that strict

18 compliance with Rule 5-501(A)(5) is required by the district court when the same

19 witnesses testified a second time at the de novo appeal from a magistrate court
6

1 conviction. Any technical violation of Rule 501(A)(5) produced no prejudice where

2 these same witnesses appeared and testified the second time at the district court trial.

3 We conclude the district court did not abuse its discretion by allowing the witnesses

4 to testify. McDaniel, 2004-NMCA-022, ¶¶ 14-15 (stating that this Court will not

5 reverse the district court’s decision unless a defendant can demonstrate that he was

6 prejudiced by the decision and that his assertion of prejudice is more than

7 speculative); State v. Griffin, 108 N.M. 55, 58, 766 P.2d 315, 318 (Ct. App. 1988).

8 The District Court Did Not Err in Allowing Evidence of Defendant’s Prior

9 Larceny Conviction

10 At trial, Defendant argued his motion in limine to prevent the State from

11 discussing Defendant’s prior conviction for larceny. The State’s response asserted,

12 among other things, that it could introduce a prior felony conviction for dishonesty

13 under Rule 11-609(A)(2) NMRA because Defendant was charged with a crime of

14 dishonesty. Defendant countered that the district court must analyze whether the

15 evidence would be more prejudicial than probative under Rule 11-403 NMRA and

16 that in this case, the evidence was more prejudicial than probative and should not be

17 allowed. After a lengthy discussion, the district court found the evidence was

18 admissible under Rule 11-609(A)(2) and the State asked Defendant about his prior

19 conviction for larceny during cross-examination.

20 On appeal, Defendant argues that the district court improperly allowed the
7

1 evidence to be admitted after failing to properly analyze the issue and failing to

2 perform the proper balancing test under Rule 11-403. Defendant does not argue that

3 the district court abused its discretion, but rather that the court improperly applied the

4 law by failing to conduct the balancing test. The law is unambiguous that any

5 evidence admitted in a criminal trial is subject to Rule 11-403. Lenz v. Chalamidas,

6 109 N.M. 113, 117, 782 P.2d 85, 89 (1989) (“It is clear from Day that the balancing

7 provision of Rule [11-]403 continues to apply to Rule [11-]609(A)(2).”); State v. Day,

8 91 N.M. 570, 575-76, 577 P.2d 878, 883-84 (Ct. App. 1978) (analyzing the language

9 of former Rule 11-609(A)(2) and Rule 11-403, concluding that the “[district] court’s

10 discretionary authority in admitting or excluding evidence under Evidence Rule [11-]

11 403 continues to apply to any evidence,” including evidence admitted pursuant to Rule

12 11-609(A)(2)). The State concedes this point.

13 The State, however, argues that the evidence was properly admitted after the

14 district court conducted the requisite balancing test. We review de novo whether the

15 district court properly applied the law to the facts in this case. State v. Martinez,

16 2008-NMSC-060, ¶ 10, 145 N.M. 220, 195 P.3d 1232 (“A misapprehension of the law

17 upon which a court bases an otherwise discretionary evidentiary ruling is subject to

18 de novo review.”).

19 Although the record is inconsistent and does not detail exactly how the district
8

1 court weighed the competing factors under Rule 11-403, sufficient statements were

2 made on the record to establish that the district court performed the balancing test

3 before ruling on the issue. Defendant repeatedly argued that the evidence was more

4 prejudicial than probative because admitting the evidence would have a chilling effect

5 on Defendant’s ability to testify and because the jury would see that he had committed

6 a similar crime in the past and assume he had done the crime in question as well.

7 After listening to Defendant’s arguments, the district court acknowledged several

8 times that it understood the necessity of balancing the competing interests. The court

9 stated:

10 I’ve given credit or note to your . . . able argument, and I recognize that

11 there is a competing factor between prejudice and probative value. I

12 recognize also that there will be some prejudice that will be imposed

13 upon the Defendant by . . . this ruling. I understand also, however, it has

14 probative value that the State is entitled to.

15 In addition, the district court limited the prejudicial impact by allowing only one

16 question to be asked by the State and no further inquiry regarding the prior conviction.

17 Reviewing the district court’s comments and recognition of the Rule 11-403 balancing

18 test, along with its ruling to limit the inquiry about the Defendant’s prior conviction,

19 the record is sufficiently clear that the district court considered both the probative

20 value and prejudicial effects of allowing the admission of Defendant’s prior

21 conviction. See State v. Trejo, 113 N.M. 342, 344-45, 825 P.2d 1252, 1254-55 (Ct.
9

1 App. 1991) (affirming the district court’s ruling to allow evidence of a prior

2 conviction when the court did not discuss on the record its thought process regarding

3 the balancing test but when its decision followed the defense’s arguments that

4 evidence of the prior conviction was more prejudicial than probative).

5 Finally, Defendant does not argue on appeal that the district court abused its

6 discretion when it allowed Defendant’s prior conviction for larceny to be admitted

7 under Rule 11-609(A)(2) and Rule 11-403. This Court will not address issues that

8 were not raised on appeal. We affirm the district court after concluding that the

9 district court did not err in admitting Defendant’s prior felony conviction.

10 The District Court Properly Denied Defendant’s Motion for a Directed

11 Verdict

12 After the State presented its evidence, Defendant moved for a directed verdict

13 on the charge for criminal damage to property. Section 30-15-1 reads as follows:

14 “Criminal damage to property consists of intentionally damaging any real or personal

15 property of another without the consent of the owner of the property.” Defendant

16 argued that the State failed to present evidence that Defendant intentionally acted to

17 break the door. The district court denied the directed verdict motion.

18 Defendant argues on appeal that the district court erred by denying his motion

19 for a directed verdict, insisting that the State failed to prove that he intended to cause
10

1 damage to the door, in other words, that the State failed to establish specific intent.

2 The State counters that because criminal damage to property is a general intent crime,

3 the State had to prove only that Defendant acted intentionally by kicking with his foot.

4 Consequently, the State was not required to prove that Defendant had a specific intent,

5 such as an intent to cause the specific result, being the damage to the door. We agree

6 with the State’s assessment.

7 We review a ruling on a directed verdict to determine if there was sufficient

8 evidence to support the underlying charge. State v. Sena, 2008-NMSC-053, ¶ 10, 144

9 N.M. 821, 192 P.3d 1198. “The test for sufficiency of the evidence is whether

10 substantial evidence of either a direct or circumstantial nature exists to support a

11 verdict of guilt beyond a reasonable doubt with respect to every element essential to

12 a conviction.” Id. (internal quotation marks and citation omitted). This Court

13 “view[s] the evidence as a whole and indulge[s] all reasonable inferences in favor of

14 the jury’s verdict, while at the same time asking whether any rational trier of fact

15 could have found the essential elements of the crime beyond a reasonable doubt.” Id.

16 ¶ 10 (alteration in original) (internal quotation marks and citations omitted). We

17 review de novo the district’s court’s application of the law to the facts. State v.

18 Barreras, 2007-NMCA-067, ¶ 3, 141 N.M. 653, 159 P.3d 1138, cert. denied, 2007-

19 NMCERT-005, 141 N.M. 763, 161 P.3d 260.
11

1 General intent requires “only the intention to make the bodily movement which

2 constitutes the act which the crime requires.” State v. Contreras, 2007-NMCA-119,

3 ¶ 16, 142 N.M. 518, 167 P.3d 966 (internal quotation marks and citation omitted);

4 State v. Haar, 110 N.M. 517, 521, 797 P.2d 306, 310 (Ct. App. 1990) (“Section 30-

5 15-1 requires general intent to do the act causing the damage and no more.”). As a

6 general intent crime, Section 30-15-1 does not require more than the intentional act

7 of kicking one’s foot. An accused does not need to intend the result of his actions in

8 order to be held criminally liable. UJI 14-141 NMRA (“A person acts intentionally

9 when he purposely does an act which the law declares to be a crime, even though he

10 may not know that his act is unlawful.”); see Haar, 110 N.M. at 521, 797 P.2d at 310.

11 The object that ultimately received the blow from Defendant’s foot is irrelevant to

12 establish general intent. Whether Defendant was accurate with his aim does not

13 negate the general intent to kick. It is only crimes of specific intent that require proof

14 that Defendant intended a specific consequence from his intentional act of kicking.

15 The State needed to prove that Defendant had the intent to kick his foot, not the

16 intent to damage the property. See Haar, 110 N.M. at 523, 797 P.2d at 310 (holding

17 that the defendant needed to intend only to shoot the gun, not to damage the car and

18 the contents inside the car). Defendant violated Section 30-15-1 as long as

19 Defendant’s intentional act of kicking caused the resulting damage to the door. Three
12

1 witnesses testified that they saw Defendant kick the door. Defendant in his brief-in2 chief admitted the kick. He offered two defenses to his actions: (1) that he slipped

3 when being grabbed by several other men, breaking the door, or (2) that he kicked at

4 one of the men in defense of himself, missed, and broke the door. By its verdict, the

5 jury rejected Defendant’s claimed defenses that he slipped or was defending himself.

6 Defendant’s admission on appeal that the evidence supported the conclusion that he

7 kicked the door, together with the reasonable inferences from the surrounding

8 circumstances, were sufficient for a jury to find that Defendant had the general intent

9 for criminal damage to property. UJI 14-141 (“[I]ntent[] may be inferred from all of

10 the surrounding circumstances, such as the manner in which he acts, the means used,

11 . . . and any statements made by him.”). “Viewing the evidence in the light most

12 favorable to the [district court’s ruling], as we must, and allowing all reasonable

13 inferences in support of the [ruling],” we hold that a jury could reasonably infer that

14 Defendant intentionally kicked his foot and caused damage to the door. Haar, 110

15 N.M. at 522, 797 P.2d at 311. We determine that there was sufficient evidence to

16 deny Defendant’s motion for a directed verdict.

17 No Fundamental Error Resulted from the State’s Transferred Intent

18 Argument

19 During the trial, the State argued that Defendant’s intent should be transferred

20 from kicking at the store employee to kicking the door. The State asserted that
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1 Defendant’s “intent transfers, goes along with the kick. The kick is the intentional act,

2 not the result.” The State first presented this theory outside the presence of the jury

3 while arguing that the district court should not grant Defendant’s directed verdict

4 motion. The State also made this argument to the jury during its closing. Defendant

5 concedes that he failed to object to the State’s argument in either instance, so we

6 review the issue on appeal for fundamental error. State v. Allen, 2000-NMSC-002,

7 ¶ 95, 128 N.M. 482, 994 P.2d 728 (“When the [district] court had no opportunity to

8 rule on [a claimed error] because the defendant did not object in a timely manner, we

9 review the claim on appeal for fundamental error.”). Fundamental error “arises when

10 the prosecutor engages in misconduct that compromises the defendant’s right to a fair

11 trial.” State v. Rojo, 1999-NMSC-001, ¶ 55, 126 N.M. 438, 971 P.2d 829. We must

12 now decide whether the State’s transferred intent argument deprived Defendant of a

13 fair trial.

14 The State incorrectly argued the theory of transferred intent. The legal theory

15 of transferred intent is normally used when the crime is one of specific intent. State

16 v. Fekete, 120 N.M. 290, 296, 901 P.2d 708, 714 (1995). “When a criminal statute

17 matches specific intent with a specific victim, the doctrine of transferred intent

18 protects an unintended victim.” Id. (providing as an example the specific intent crime

19 of murder where “a defendant, while intending to kill one person, accidentally kills
14

1 an innocent bystander or another unintended victim”) (internal quotation marks

2 omitted). The theory does not normally apply to general intent crimes because the

3 intent is to commit the action and not the intended result. Id. (“The purpose of the

4 doctrine is to impose a criminal liability upon an actor when he or she intends to

5 commit a criminal act, and the actual result differs from the result designed or

6 contemplated only in that a different person or property was injured or affected.”

7 (internal quotation marks and citation omitted)).

8 Nevertheless, the State’s misplaced references to transferred intent did not

9 undermine the jury’s verdict because, as we have discussed, the charged crime

10 required only a showing of general intent. By arguing transferred intent, the State

11 imposed on itself a greater burden, to prove specific intent. We have already

12 determined that the evidence was sufficient to establish the requisite general intent.

13 Therefore, no fundamental error resulted from the State’s actions because the State

14 proved more than was required. See State v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M.

15 55, 946 P.2d 1066 (“Fundamental error only applies in exceptional circumstances

16 when guilt is so doubtful that it would shock the judicial conscience to allow the

17 conviction to stand.”).

18 CONCLUSION

19 We affirm the district court on all issues.
15

1 IT IS SO ORDERED

2 ______________________________ 

3 TIMOTHY L. GARCIA, Judge 

4 WE CONCUR:

5 _____________________________

6 CYNTHIA A. FRY, Chief Judge

7 _____________________________

8 CELIA FOY CASTILLO, Judge