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

STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 28,912 4 ESMEREGILDO ALMAGER, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 7 Jerry H. Ritter, Jr., District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 Corey J. Thompson, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 CASTILLO, Judge. 17 Defendant appeals from multiple convictions arising out of an incident in which 18 he and a co-defendant, Tiffany, burglarizeda home, assaulted its residents, and 192 subsequently attempted to avoid the police and destroy evidence. In this Court’s 1 notice of proposed summary disposition, we proposed to affirm Defendant’s 2 convictions and sentence. Defendant has responded with a memorandum in 3 opposition pursuant to several extensions of time. We are not persuaded by 4 Defendant’s arguments, and we now affirm. 5 Cruel and Unusual Punishment 6 Defendant claims that the district court imposed cruel and unusual punishment 7 in sentencing. [DS 10] In this Court’s notice of proposed summary disposition, we 8 noted that it did not appear that Defendant actually preserved the argument that his 9 sentence violated his right to be free of cruel and unusual punishment. [ SeeRP 426- 10 31] Accordingly, we proposed to affirm. See State v. Wyman , 2008-NMCA-113, ¶ 11 10, 144 N.M. 701, 191 P.3d 559 (declining to review a constitutional attack on a 12 sentence when the issue had not been preserved in the sentencing court), cert. granted , 13 2008-NMCERT-008, 145 N.M. 255, 195 P.3d 1267. 14 Defendant’s memorandum in o pposition asserts that this issue may be raised for 15 the first time on appeal. [MIO 15] However, in State v. Burdex , 100 N.M. 197, 201, 16 668 P.2d 313, 317 (Ct. App. 1983) , we held that a constitutional claim of cruel and 17 unusual punishment is non-jurisdictional and mu st be preserved fo r appellate review. 18 Defendant also suggests that a fundamental error analysis may apply [MIO 15], but 193 does not explain how Defendant’s sentence constituted fundamental error, as opposed 1 to reversible error. Accordingly, we d ecline to address this claim, since it was not 2 preserved and since Defendant has not de veloped his argument that his sentence 3 constituted fundamental error. As we stated in our notice of proposed summary 4 disposition, the imposition of consecutive ha bitual offender enhancements on multiple 5 convictions does not violate the constituti onal prohibition against cruel and unusual 6 punishment, and the length of a sentence to be imposed is generally a legislative 7 prerogative, such that “without a compelling reason, we do not impose our views 8 concerning the appropriate punishments for crimes.” State v. Lucero , 104 N.M. 587, 9 594, 725 P.2d 266, 273 (Ct. App. 1986). 10 Fair Sentencing 11 Defendant claims that he was depriv ed of a fair sent ence when evidence 12 relevant to his plea negotiati ons was introduced during sentencing. [DS 10] In this 13 Court’s notice of proposed summary dispositi on, we proposed to conclude that even 14 if it was error under Rule 5-304(F) NMRA to admit the evidence, the error was 15 harmless. 16 Defendant has responded, pursuant to State v. Franklin , 78 N.M. 127, 129, 428 17 P.2d 982, 984 (1967), and State v. Boyer , 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. 18 App. 1985). [MIO 18] As Defendant’s memorandum in opposition does not 194 demonstrate that the introduction of this evidence prejudiced him, we hold that any 1 error was harmless. SeeRule 5-113(A) NMRA (“Error ineither the admission or the 2 exclusion of evidence and error or defect inany ruling, order, act or omission by the 3 court or by any of the parties is not grounds for granting a new trial or for setting aside 4 a verdict, for vacating, modifying or otherwise disturbing a judgment or order, unless 5 refusal to take any such action appears tothe court inconsistent with substantial 6 justice.”). 7 Evidence of the MySpace Pages 8 Defendant asserts that the district c ourt abused its discretion in refusing to 9 permit Defendant to introduce printouts of Tiffany’s MySpace pages in order to show 10 that she lied about her age and portrayed herself as a gangster and someone who took 11 illegal drugs. [DS 9, 10] In our notice, weproposed to conclude that Defendant failed 12 to preserve an argument at trial that he had a Sixth Amendment right to have this 13 evidence admitted. In Defendant’s memorandum in opposition, he does not assert that 14 the argument was preserved. Therefore, we conclude thatthis claim of error does not 15 warrant reversal. SeeRule 12-216 NMRA (setting out requirement that issues be 16 preserved for appellate review). 17 Sufficiency of the Evidence 18 Defendant claims that there was insuffi cient evidence of th e value of the cash 195 and jewelry that were stolen. [DS 10] “In reviewing the sufficiency of the evidence, 1 we must view the evidence inthe light most favorable to the guilty verdict, indulging 2 all reasonable inferences and resolving all conflicts in the evidence in favor of the 3 verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 4 In our notice, we proposed to find that substantial evidence supported a finding that 5 the value of the cash and jewelry was more than $20,000. 6 In Defendant’s memorandum in opposition, he argues that because there was 7 no evidence of the age and condition of the jewelry, there was insufficient evidence 8 to establish beyond a reasonable doubt the market value of the jewelry at the time it 9 was stolen. [MIO 21] We disagree. Defendant acknowledges that Alice Seeley 10 testified that $16,500 in cash was taken from th e safe and that jewelry worth at least 11 $85,500 was stolen. [MIO 21] This Court has previously stated that “an owner of 12 personal property may testif y concerning the value of the property and that such 13 testimony is sufficient to support a jury’s determination of value.” State v. Hughes , 14 108 N.M. 143, 145-46, 767 P.2d 382, 384-85 (Ct. App. 1988). We therefore conclude 15 that Seeley’s testimony was sufficient to es tablish that the value of the missing items 16 was at least $20,000. 17 Double Jeopardy 18 Defendant claims that the district court subjected him to double jeopardy in “not 196 merging certain counts.” [DS 11] A double jeopardy analysis in a double-description 1 case requires this Court first to determin e whether the conduct wa s unitary, and then, 2 if it is, to determine whether the Legisl ature intended multiple punishments for the 3 unitary conduct. State v. DeGraff , 2006-NMSC-011, ¶ 26, 139 N.M. 211, 131 P.3d 4 61. 5 Defendant contends, pursuant to Franklinand Boyer , that all of his conduct at 6 the victims’ house was unitary, and that all of his acts at the motel were a separate 7 event. [MIO 13-14] In our notice of proposed summary disposition, we stated that 8 after examining all the charges relating to conduct that occurred in the house, we did 9 not believe that any werebased on conduct that was unitary and for which the 10 Legislature did not intend separate punishment s. In Count 1, De fendant was charged 11 with aggravated burglary for entering the victims’ home armed with a firearm and 12 with the intent to commit a theft. [RP 179] In Count 2, Defe ndant was charged with 13 larceny for stealing money and jewelry. [RP 180] In Count 3, Defendant was charged 14 with aggravated battery with a deadly w eapon for hitting Seeley with a gun. [RP 184] 15 In Count 6, Defendant was ch arged with aggravated assault for threatening to shoot 16 Alice Seeley. [RP 187] In Count 7, Defe ndant was charged with aggravated assault 17 for actually shooting at David Hall. [RP 188] In Count 8, Defendant was charged 18 with transportation of a rifle by a felon. [RP 189] In Count 9, Defendant was charged 197 with possession of a handgun by a felon. [RP 190] These are all the charges relating 1 to when Defendant was in th e home. (We do not believe that the conspiracy charge 2 relates to events in the home, since, ba sed on the facts of this case, the evidence 3 suggested that Defendant and Tiffany would have had to agree to commit the illegal 4 acts prior to entering the home.) 5 As to the events that occu rred in the motel, we also stated in our notice that we 6 did not believe that these were unitary: In Count 5, Defendant was charged with 7 tampering with evidence for burning and hiding money in the hotel room. [RP 186] 8 In Count 11, he was charged with resisting or evading an officer. [RP 192] And in 9 Count 12, he was charged with criminal damage to property for damaging property 10 at the motel. [RP 193] 11 Defendant has not provided this Court with any authority to suggest that all of 12 the acts were “unitary” under a double jeopardy analysis simply because they occurred 13 in a single location on a single evening. A ccordingly, we hold that neither the acts in 14 the home nor the acts in the motel wereunitary and that Defendant’s multiple 15 convictions did not violate double jeopardy concerns. 16 The Amended Indictment 17 Defendant claims that the district court erred in permitting the prosecutor to 18 amend the indictment to change Count 3 from aggravated battery for hitting Seeley 198 with the butt of a rifle to aggravated battery for hitting Seeley with the butt of a 1 handgun. [DS 11] Rule 5-204(C) NMRA provi des that a district court “may at any 2 time allow the indictment or information to be amended in respect to any variance to 3 conform to the evidence.” It is only if “the court finds that the defendant has been 4 prejudiced by an amendment” that “ the c ourt may postpone the trial or grant such 5 other relief as may be proper under the circumstances.” Id. In this case, the district 6 court concluded that Defendant would not be prejudiced by the amendment. [RP 385] 7 In our notice of proposed summary dispositi on, we proposed to hold that the district 8 court did not abuse its discreti on in permitting the amendment. See State v. Maestas , 9 2007-NMCA-155, ¶ 13, 143 N.M. 104, 173 P.3d 26 (stating that a district court’s 10 decision to allow an amendment to a complaint is reviewed for an abuse of discretion). 11 Defendant has responded, pursuant to Franklinand Boyer , and asserts that he 12 was deprived of fair notice of the charge s in this case. [MIO 22-23] We are not 13 persuaded. Defendant doe s not assert that his de fense was prejudiced by the 14 substitution of one type of weapon for another, and “[a] court does not abuse its 15 discretion by allowing an amendment that in cludes facts subsequently discovered and 16 timely communicated when there is no change to the elements of the offense charged.” 17 Maestas , 2007-NMCA-155, ¶ 13. 18 Therefore, for the reasons stated in this opinion and in our notice of proposed 199 summary disposition, we affirm De fendant’s convictions and sentence. 1 IT IS SO ORDERED. 2

________________________________ 3 CELIA FOY CASTILLO, Judge 4 WE CONCUR: 5

________________________________ 6 RODERICK T. KENNEDY, Judge 7

________________________________ 8 TIMOTHY L. GARCIA, Judge 9