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

2 Opinion Number: _____________

3 Filing Date: November 30, 2023

4 No. A-1-CA-40605

5 STATE OF NEW MEXICO,

6 Plaintiff-Appellee,

7 v.

8 MICHAEL FIERRO a/k/a

9 MICHAEL S. FIERRO a/k/a

10 MIKE SAMUEL FIERRO,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

13 Eileen P. Riordan, District Court Judge

14 Raúl Torrez, Attorney General

15 Santa Fe, NM

16 Michael J. Thomas, Assistant Attorney General

17 Albuquerque, NM 

18 for Appellee

19 Bennett J. Baur, Chief Public Defender

20 Joelle N. Gonzales, Assistant Appellate Defender

21 Santa Fe, NM 

22 for Appellant
2

1 OPINION

2 BOGARDUS, Judge. 

3 {1} The Decision filed in this matter on November 21, 2023 is hereby withdrawn 

4 and replaced with this Opinion, based upon a motion to publish, which the Court has 

5 simultaneously granted by separate order.

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

7 violation of NMSA 1978, Section 30-14-1(A) (1995); and criminal damage to 

8 property over $1000 in violation of NMSA 1978, Section 30-15-1 (1963). Defendant 

9 argues that: (1) the evidence presented at trial was insufficient to support a 

10 conviction of criminal trespass; (2) the district court provided improper jury 

11 instructions regarding the criminal trespass charge; and (3) his conviction for 

12 criminal damage to property over $1000 violated his right to equal protection. The 

13 State concedes that there was insufficient evidence presented at trial to convict 

14 Defendant of criminal trespass. Because we agree, we reverse Defendant’s 

15 conviction for criminal trespass and therefore do not address the merits of 

16 Defendant’s second argument. Moreover, we do not consider Defendant’s third 

17 argument because we conclude that sufficient evidence does not support Defendant’s 

18 conviction for criminal damage to property over $1000. See State v. Clemonts, 2006-

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

20 sua sponte because “the [s]tate’s failure to come forward with substantial evidence 
3

1 of the crime charged implicates fundamental error and the fundamental rights of [the 

2 d]efendant”).

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

4 offense of criminal damage to property, we reverse Defendant’s convictions for

5 criminal damage to property over $1000 and remand the case for entry of judgment 

6 of conviction and resentencing for criminal damage of property without a new trial. 

7 State v. Haynie, 1994-NMSC-001, ¶ 4, 116 N.M. 746, 867 P.2d 416. 

8 BACKGROUND

9 {4} On August 23, 2021, Defendant was arrested for criminal trespass when he 

10 was seen by Officer Javier Garcia jumping over a fence surrounding a residence in 

11 Carlsbad, New Mexico. Officer Garcia put Defendant in the back of his patrol car, 

12 where Defendant became erratic and kicked the plexiglass divider. Defendant 

13 cracked the divider and the estimated cost of repair was $1,710. This estimate 

14 presented at trial included a drive time and mileage charge for the transport of the 

15 patrol car from Carlsbad to Albuquerque, New Mexico, and back. Despite the State 

16 failing to present evidence on the location of the trespass, the jury convicted 

17 Defendant of criminal trespass to property, criminal damage to property, and 

18 criminal damage over $1000. Defendant appeals. 
4

1 DISCUSSION

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

3 novo. State v. Neatherlin, 2007-NMCA-035, ¶ 8, 141 N.M. 328, 154 P.3d 703. When 

4 reviewing for sufficiency, we view the evidence in the light most favorable to the 

5 verdict, then determine “whether the evidence viewed in this manner could justify a 

6 finding by any rational trier of fact that each element of the crime charged has been 

7 established beyond a reasonable doubt.” State v. Trossman, 2009-NMSC-034, ¶ 16, 

8 146 N.M. 462, 212 P.3d 350 (internal quotation marks and citation omitted). We 

9 “indulg[e] all reasonable inferences and resolv[e] all conflicts in the evidence in 

10 favor of the verdict.” State v. Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 

11 P.3d 891 (internal quotation marks and citation omitted). In reviewing for 

12 sufficiency, “[t]he reviewing court does not weigh the evidence or substitute its 

13 judgment for that of the fact[-]finder as long as there is sufficient evidence to support 

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

15 I. Criminal Trespass

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

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

18 concession, see State v. Martinez, 1999-NMSC-018, ¶ 26, 127 N.M. 207, 979 P.2d 

19 718, we agree that there was insufficient evidence to convict Defendant of that crime. 

20 Simply, the State failed to establish that Defendant “entered or remained at” the 
5

1 property in question. See UJI 14-1401 NMRA (element 1); § 30-14-1(A) (defining 

2 criminal trespass as “knowingly entering or remaining upon posted private property 

3 without possession written permission from the landowner or person in control of 

4 the land”). The State concedes that the State failed to present “any evidence . . . to 

5 the jury as to the specific location at which the trespass allegedly occurred.” After 

6 reviewing the record, we agree with the State that no evidence at trial established 

7 where the trespass occurred. Therefore, there was no evidence to support the first 

8 required element of the charge under the jury instructions to find Defendant guilty 

9 of criminal trespass and his conviction must be reversed. See Montoya, 2015-

10 NMSC-010, ¶ 52 (stating that there must be sufficient evidence to support a guilty 

11 verdict with respect to every element of the crime); see also State v. Smith, 1986-

12 NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (stating that the jury instructions are 

13 the law of the case). 

14 II. Criminal Damage to Property Over $1000

15 {7} When our review of a conviction for sufficiency of the evidence requires us 

16 to interpret the language of a statute it “presents a question of law which is reviewed 

17 de novo.” Chavez, 2009-NMSC-035, ¶ 10. “In interpreting a statute, our primary 

18 objective is to give effect to the Legislature’s intent.” State v. Trujillo, 2009-NMSC19 012, ¶ 11, 146 N.M. 14, 206 P.3d 125. We look first to the language used in the 

20 statute and its plain meaning to determine legislative intent. Id. If the language is 
6

1 clear and unambiguous we will follow the meaning of that language and refrain from 

2 further interpretation. Id. Moreover, “[w]e will not read into a statute any words that 

3 are not there, particularly when the statute is complete and makes sense as written.” 

4 Id. “After reviewing the statutory standard, we apply a substantial evidence standard 

5 to review the sufficiency of the evidence at trial.” Chavez, 2009-NMSC-035, ¶ 11. 

6 {8} The statute for criminal damage to property over $1000 states that any person 

7 who “commits criminal damage to property is guilty of a petty misdemeanor” unless 

8 the damage caused “amounts to more than one thousand dollars [in which case] he 

9 is guilty of a fourth degree felony.” Section 30-15-1. The calculation for the amount 

10 of damage is either “the difference between the price at which the property could 

11 ordinarily be bought or sold prior to the damage and the price at which the property 

12 could be bought or sold after the damage,” UJI 14-1510 NMRA, or “the cost of 

13 repair or replacement, whichever is less.” State v. Cobrera, 2013-NMSC-012, ¶ 8, 

14 300 P.3d 729 (explaining that the instruction provides two separate methods for 

15 evaluating property damage). The replacement cost here, including installation labor 

16 but excluding mileage and per diem for the technician, is approximately $600. 

17 Nothing in the language of the statute or the UJI states that additional charges or 

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

19 Furthermore, the language “repair or replacement cost” is clear and does not 

20 necessarily encompass additional charges such as transportation costs to a repair 
7

1 facility or for the technician to perform the repair or replacement. We would 

2 effectively be reading words into the statute and UJI for criminal damage to property 

3 by including additional costs, such as the cost to transport a technician, in the 

4 calculation of the amount of damage caused by the defendant. Trujillo, 2009-NMSC5 012, ¶ 11. We will not read language into a statute when the plain meaning of the 

6 language present is clear, id., and we therefore conclude that the cost of the 

7 technician’s travel to Carlsbad from Albuquerque to work on the police car cannot 

8 be included in calculation of the amount of damage caused by Defendant. 

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

10 consider the mileage and drive time charges as a portion of the damage caused by 

11 Defendant. The only evidence presented at trial as to the damage caused by 

12 Defendant was less than $1000. Thus, there was insufficient evidence at trial for a 

13 jury to convict Defendant of criminal damage to property over $1000 and we reverse 

14 Defendant’s conviction on that charge. 

15 CONCLUSION

16 {10} We reverse Defendant’s convictions for trespass and criminal damage to 

17 property over $1000. We remand for entry of judgment of conviction and 

18 resentencing based on Defendant’s conviction for misdemeanor criminal damage to 

19 property. Haynie, 1994-NMSC-001, ¶ 4
8

1 {11} IT IS SO ORDERED.

2 _____________________________

3 KRISTINA BOGARDUS, Judge

4 WE CONCUR:

5 ____________________________

6 ZACHARY A. IVES, Judge

7 ____________________________

8 KATHERINE A. WRAY, Judge