The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Clerk of the Court for compliance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

Opinion Number: _____________ 2

Filing Date: November 30, 2023 3

No. A

- 1

- CA

- 40605 4

STATE OF NEW MEXICO, 5

Plaintiff

- Appellee, 6

v. 7

MICHAEL FIERRO a/k/a 8 MICHAEL S. FIERRO a/k/a 9 MIKE SAMUEL FIERRO, 10

Defendant

- Appellant. 11

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 12 Eileen P. Riordan, District Court Judge 13
Raúl Torrez, Attorney General 14 Santa Fe, NM 15 Michael J. Thomas, Assistant Attorney General 16 Albuquerque, NM 17
for Appellee 18

Bennett J. Baur, Chief Public Defender 19 Joelle N. Gonzales, Assistant Appellate Defender 20 Santa Fe, NM 21
for Appellant 222 OPINION 1

BOGARDUS , Judge. 2

{1} The Decision filed in this matter on November 21, 2023 is hereby withdrawn 3
and repla ced with this Opinion, based upon a motion to publish, which the Court has 4
simultaneously granted by separate order. 5

{ 2 } Defendant Michael Fierro appeals his convictions for criminal trespass in 6

violation of NMSA 1978, Section 30

- 14

- 1(A) (1995 ) ; and criminal damage to 7
property over $1000 in violation of NMSA 1978, Section 30

- 15

- 1 (1963 ) . Defendant 8
argues that: (1) the evidence presented at trial was insufficient to support a 9
conviction of criminal trespass; (2) the district court provided improper jury 10
instructions regarding the criminal trespass charge; and (3) his conviction for 11
criminal damage to property over $1000 violated his right to equal protection. The 12
State concedes that there was insufficient evidence presented at trial to convict 13

D efendant of criminal trespass. Because we agree, we reverse Defendant’s 14
conviction for criminal trespass and therefore do not address the merits of 15
Defendant’s second argument. Moreover, we do not consider Defendant’s third 16
argument because we conclude that sufficient evidence does not support Defendant’s 17
conviction for criminal damage to property over $1000. See State v. Clemonts , 2006

- 18

NMCA

- 031, ¶ 10, 139 N.M. 147, 130 P.3d 208 (raising sufficiency of the evidence 19

sua sponte because “the [s] tate’ s failure to come forward with substantial evidence 203 of the crime charged implicates fundamental error and the fundamental rights of [the 1

d] efendant ” )

. 2

{ 3 } Because the jury below also found Defendant guilty of the lesser included 3

offense of criminal damage to property
, we reverse Defendant’s convictions for 4
criminal damage to property over $1000 and remand the case for entry of judgment 5
of conviction and resentencing for criminal damage of property without a new trial

. 6

State v. Haynie , 1994

- NMSC

- 001, ¶ 4, 116 N.M. 746, 867 P.2d 416

. 7

BACKGROUND 8

{ 4 } On August 23, 2021, Defendant was arrested for criminal trespass when he 9
was seen by Officer Javier Garcia jumping over a fence surrounding a residence in 10
Carlsbad, New Mexico. Officer Garcia put Defendant in the back of his patrol car, 11
where Defendant became erratic and kicked the plexiglass divider. Defendant 12
cracked the divider and the estimated cost of repair was $1,710. This estimate 13
presented at trial included a drive time and mileage charge for the transport of the 14
patrol car from Carlsbad to Albuquerque , New Mexico, and back. Despite the State 15
failing to present evidence on the location of the trespass, the jury convicted 16
Defendant of criminal trespass to property, criminal damage to property, and 17
criminal damage over $1000. Defendant appeals. 184 DISCUSSION 1

{ 5 } We review whether there is sufficient evidence to support a conviction de 2

novo. State v. Neatherlin , 2007

- NMCA

- 035, ¶ 8, 141 N.M. 328, 154 P.3d 703

. When 3
reviewing for sufficiency, we view the evidence in the light most favorable to the 4
verdict, then determine “whether the evidence viewed in this manner could justify a 5
finding by any rational trier of fact that each element of the crime charged has been 6
established beyond a reasonable doubt.” State v. Trossman , 2009

- NMSC

- 034, ¶ 16, 7
146 N.M. 462, 212 P.3d 350 (internal quotation marks and citation omitted). We 8
“indulg[e] all reasonable inferences and resolv[e] all conflicts in the evidence in 9

favor of the verdict.” State v. Chavez , 2009

- NMSC

- 035, ¶ 11, 146 N.M. 434, 211 10
P.3d 891 (internal quotation marks and citation omitted). In reviewing for 11
sufficiency, “[t]he reviewing court does not weigh the evidence or substitute its 12
judgment for that of the fact[

- ]finder as long as there is sufficient evidence to support 13

the verdict.” Id. (internal quotation marks and citation omitted). 14

I. Criminal Trespass 15

{ 6 } The State concedes that there was insufficient evidence presented at trial to 16

convict D efendant of criminal trespass . Although we are not bound by the State’s 17

concession, s ee State v. Martinez , 1999

- NMSC

- 018, ¶ 26, 127 N.M. 207, 979 P.2d 18

718 , we agree that there was insufficient evidence to convict Defendant of that crime. 19
Simply, the State failed to establish that Defendant “entered or remained at” the 205 property in question. See UJI 14

- 1401 NMRA (element 1); § 30

- 14

- 1(A) (defining 1
criminal trespass as “knowingly entering or remaining upon posted private property 2
without possession written permission from the landowner or person in control of 3
the land”). The State concedes that the State failed to present “any evidence . . . to 4
the jury as to the specific location at which the trespass allegedly occurred.” After 5
reviewing the record, we agree with the State that no evidence at trial established 6
where the trespass occurred. Therefore, there was no evidence to support the first 7
required element of the charge under the jury instructions to find Defendant guilty 8
of criminal trespass and his conviction must be reversed. See Montoya , 2015

- 9

NMSC

- 010, ¶ 52 (stating that there must be sufficient evidence to support a guilty 10
verdict with respect to every element of the crime); see also State v. Smith , 1986

- 11

NMCA

- 089, ¶ 7 , 104 N.M. 729, 726 P.2d 883 (stating that the jury instructions are 12
the law of the case). 13

II. Criminal Damage to Property O ver $1000 14

{ 7 } When our review of a conviction for sufficiency of the evidence requires us 15
to interpret the language of a statute it “presents a question of law which is reviewed 16

de novo.” Chavez , 2009

- NMSC

- 035, ¶ 10. “In interpreting a statute, our primary 17
objective is to give effect to the Legislature ’ s intent.” State v. Trujillo , 2009

- NMSC

18

012, ¶ 11, 146 N.M. 14, 206 P.3d 125 . We look first to the language used in the 19
statute and its plain meaning to determine legislative intent. Id. If the language is 206 clear and unambiguous we will follow the meaning of that language and refrain from 1
further interpretation. Id. Moreover, “[w]e will not read into a statute any words that 2
are not there, particularly when the statute is complete and makes sense as written.” 3

Id. “After reviewing the statutory standard, we apply a substantial evidence standard 4
to review the sufficiency of the evidence at trial.” Chavez , 2009

- NMSC

- 035, ¶ 11. 5

{ 8 } The statute for criminal damage to property over $1000 states that any person 6
who “commits criminal damage to property is guilty of a petty misdemeanor” unless 7
the damage caused “amounts to more than one thousand dollars [in which case] he 8
is guilty of a fourth degree felony.” Section 30

- 15

- 1. The calculation for the amount 9
of damage is either “the difference between the price at which the property could 10
ordinarily be bought or sold prior to the damage and the price at which the property 11
could be bought or sold after the damage,” UJI 14

- 1510 NMRA, or “the cost of 12
repair or replacement, whichever is less.” State v. Cobrera , 2013

- NMSC

- 012, ¶ 8, 13

300 P.3d 729 (explaining that the instruction provides two separate methods for 14
evaluating property damage). The replacement cost here, including installation labor 15
but excluding mileage and per diem for the technician, is approximately $600. 16
Nothing in the language of the statute or the UJI states that additional charges or 17

costs can be included in the “repair or replacement cost ” of the item damaged. 18

Furthermore, t he language “repair or replacement cost” is clear and does not 19
necessarily encompass additional charges such as t ransportation cost s to a repair 207 facility or for the technician to perform the repair or replacement. We would 1
effectively be reading words into the statut e and UJI for criminal damage to property 2
by including additional costs, such as the cost to transport a technician, in the 3
calculation of the amount of damage caused by the defendant

. Trujillo , 2009

- NMSC

4

012, ¶ 11. We will not read language into a statute when the plain meaning of the 5
language present is clear, id. , and we therefore conclude that the cost of the 6
technician’s travel to Carlsbad from Albuquerque to work on the police car cannot 7
be included in calculation of the amount of damage caused by D efendant. 8

{ 9 } Based on our view of the statute, the jury should not have been permitted to 9

consider the m ileage and d rive t ime charge s as a portion of the damage caused by 10
Defendant. The only evidence presented at trial as to the damage caused by 11

Defendant was less than $1000. Thus, there was insufficient evidence at trial for a 12
jury to convict Defendant of criminal damage to property over $1000 and we reverse 13
Defendant’s conviction on that charge. 14

CONCLUSION 15

{ 10 } We reverse Defendant’s convictions for trespass and criminal damage to 16
property over $1000. We remand for entry of judgment of conviction and 17
resentencing based on Defendant’s conviction for misdemeanor criminal damage to 18

property. Haynie , 1994

- NMSC

- 001, ¶ 4 198 {1 1 } IT IS SO ORDERED. 1

_____________________________ 2 KRISTINA BOGARDUS, Judge 3

WE CONCUR: 4

_________________________ _

__ 5 ZACHARY A. IVES, Judge 6

________________________ _

___ 7 KATHERINE A. WRAY, Judge 8