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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
SETH BENJAMIN HULS,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, William G.
Shoobridge, District Judge
Hector H. Balderas, Attorney General,
Dianna Lewis Luce, Assistant Attorney General, Albuquerque, NM, for Appellee
Bennett J. Baur, Chief Public Defender,
Santa Fe, NM, M.J. Edge, Assistant Appellate Defender, Albuquerque, NM, for
Appellant
LINDA M. VANZI, Chief Judge. WE CONCUR:
HENRY M. BOHNHOFF, Judge, JENNIFER L. ATTREP, Judge
{1} Defendant appeals
his conviction, following a jury trial, of two counts of criminal sexual
contact of a minor. [MIO 1] As his sole appellate issue, Defendant challenges
the district court’s ruling allowing the victim’s testimony to be received by
way of a video deposition pursuant to Rule
5-504 NMRA. [Id.] This Court issued
a notice of proposed summary disposition, proposing to affirm. Defendant has
filed a memorandum in opposition to that proposed disposition. Having duly
considered that memorandum, we remain unpersuaded.
{2} In his docketing
statement, Defendant generally asserted that written findings made by the
district court were insufficient to justify the admission of victim’s
videotaped testimony. [DS unnumbered pages 2-3] In his memorandum in opposition
to summary affirmance, Defendant continues to assert that those findings are
lacking and takes specific issue with the testimony of a mental health
counselor who testified regarding the victim’s condition and ability to
testify, asserting that the current record does not show “that he had a
therapeutic relationship with [the child] of had evaluated her for her
potential for renewed trauma from having to testify in court.” [MIO 4]
{3} As we pointed out
in our notice of proposed summary disposition, our rules require that Defendant
provide this Court with a factual summary that is sufficient to enable
appellate review.
See Rule
12-208(D)(3) NMRA (requiring docketing
statements to contain a summary of “all facts material to a consideration of
the issues presented”);
Thornton v. Gamble,
1984-NMCA-093, ¶ 18,
101
N.M. 764,
688 P.2d 1268. With regard to the counselor’s relationship to the
victim, Defendant’s docketing statement informs us only that he “testified that
he had interviewed the witness and it was his determination that the victim
would be harmed by testifying at trial.” [DS unnumbered page 1] It thus seems,
even on the basis of the sparse facts provided, that the counselor did evaluate
the potential trauma that would be associated with testifying in court.
{4} In any event,
Defendant’s memorandum in opposition does not assert that the evidence was
inadmissible, and thus raises only the question of what weight the district
court should have given to such testimony. As we pointed out in our notice of
proposed summary disposition, it is not the role of this Court to reweigh the
evidence received below.
See State v. Salas,
1999-NMCA-099, ¶ 13,
127
N.M. 686,
986 P.2d 482 (explaining that this Court defers “to the district
court when it weighs the credibility of witnesses”);
Las Cruces Prof’l Fire
Fighters v. City of Las Cruces,
1997-NMCA-044, ¶ 12,
123 N.M. 329,
940 P.2d
177 (explaining that this Court does not reweigh the evidence on appeal).
{5} Ultimately, we
conclude that Defendant has not met his burden, in opposing the proposed
summary disposition “to clearly point out errors in fact or law.”
Hennessy
v. Duryea,
1998-NMCA-036, ¶ 24,
124 N.M. 754,
955 P.2d 683;
see also
State v. Mondragon,
1988-NMCA-027, ¶ 10,
107 N.M. 421,
759 P.2d 1003
(explaining that the repetition of earlier arguments does not meet a party’s
burden to come forward and specifically point out errors of law or fact in a notice
of proposed summary disposition),
superceded by statute on other grounds as
stated in State v. Harris, 2013-NMCA-01, ¶ 3,
297 P.3d 374. Accordingly,
for the reasons stated here and in our notice of proposed summary disposition,
we affirm the judgment of the district court.
LINDA M. VANZI, Chief Judge
JENNIFER L. ATTREP, Judge