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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CARLOS C.,
Child-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY, Freddie
J. Romero, District Judge
Gary K. King, Attorney General, Santa Fe,
NM, for Appellee
Jorge A. Alvarado, Chief Public Defender,
Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for
Appellant
M. MONICA ZAMORA, Judge. WE CONCUR:
MICHAEL E. VIGIL, Judge, TIMOTHY L. GARCIA, Judge
{1} Child appeals from
the district court’s adjudicating him delinquent for having committed
shoplifting under $250. We issued a notice of proposed summary disposition,
proposing to affirm. Child has filed a memorandum in opposition to our notice.
We have considered Child’s response and remain unpersuaded that the district
court erred. Thus, we affirm.
{2} On appeal, Child
argues that the State committed discovery abuse and that the case against him
should be dismissed. [MIO 4-10] Child also argues that insufficient evidence
was presented. [MIO 10-12]
{3} In response to our
notice, Child contends that the circumstances meet the four- factor test for
determining whether a discovery violation constitutes reversible error. [MIO 5]
Regardless of the particular iteration of the test for lost evidence, our case
law is clear that “[w]hen evidence is lost in a way that does not involve bad
faith, the defendant bears the burden of showing materiality and prejudice
before sanctions are appropriate.”
State v. Pacheco,
2008-NMCA-131,
¶ 30,
145 N.M. 40,
193 P.3d 587. There is no indication in the current case
that the undisclosed evidence involved any bad faith. As for materiality and
prejudice, Child contends that the video surveillance tape, the merchandise,
and the receipts and tags for the merchandise constituted material evidence and
that their absence prejudiced Child’s defense because it deprived him of the
opportunity to examine the basis for the officers’ testimony and impeach their testimony
with possible inconsistencies. [MIO 8-9] We are not persuaded.
{4} Significantly, we
observe that Child’s case was tried before a judge, not a jury. In a bench
trial, the judge is presumed to properly weigh the evidence; thus, the
erroneous admission of evidence is deemed harmless unless the circumstances
indicate that the judge must have relied on that evidence.
See State v.
Pickett,
2009-NMCA-077, ¶ 13,
146 N.M. 655,
213 P.3d 805. In the current
case, the judge expressly ruled that the outcome would have been the same even
if the State had disclosed the information, assuming the State had not
fulfilled its duty of disclosure. [DS unpaginated 6] It appears to us that
inherent in the district court ruling is the determination that, even with the
loss of the videotape and excluding any improper testimony based solely on the
lost evidence, the evidence presented through the eye witness testimony of Mr.
Bentley–the loss-prevention officer at K-Mart, who observed Child’s approximate
two-hour-visit to the store through the in-store camera and chased Child as he
fled from the officer and the store–presented overwhelming evidence of guilt.
We see no abuse of discretion.
{5} Specifically, we
fail to see how the merchandise itself would have contributed to Child’s
defense, and Child makes no argument about its significance.
See, e.g.,
Pacheco,
¶¶ 31-32 (holding that the lost packages of methamphetamine did not prejudice
the defendant where there was no defense argument about how they could have
been used to undercut the prosecution’s case or how they were material to the
defendant’s guilt or innocence; and the defense engaged in a lengthy
cross-examination of the State’s witnesses about the loss of evidence, and
argued the significance of their absence to the jury). As for the surveillance
video, Child’s alleged prejudice is purely speculative, and the district court
considered all the arguments about the missing video when weighing the
prejudice to Child. Given the observations of the eye witness in real time, we
conclude that the district court’s denial of the drastic remedy of dismissal
was not an abuse of discretion.
Sufficiency of the Evidence
{6} Our notice detailed
the appropriate standard of review and the evidence presented to support
Child’s conviction, and surmised about the possible challenges Child intended
to assert against the sufficiency of the evidence. We proposed to conclude that
the evidence was sufficient. We do not repeat that analysis here. Child does
not present us with any new factual or legal argument to persuade us that our
analysis was incorrect. Thus, for the reasons stated in our notice, we hold
that the evidence was sufficient.
{7} Based on the
foregoing, we affirm the district court’s judgment, disposition, and commitment
of Child with regard to shoplifting.