{ "id": 1588606, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Louie Celestino ROYBAL, Defendant-Appellant", "name_abbreviation": "State v. Roybal", "decision_date": "1983-07-12", "docket_number": "No. 7212", "first_page": "155", "last_page": "157", "citations": [ { "type": "official", "cite": "100 N.M. 155" }, { "type": "parallel", "cite": "667 P.2d 462" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "91 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571098 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0445-01" ] }, { "cite": "77 N.M. 505", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803522 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0505-01" ] }, { "cite": "260 U.S. 353", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11926001 ], "weight": 3, "year": 1922, "opinion_index": 0, "case_paths": [ "/us/260/0353-01" ] }, { "cite": "90 N.M. 134", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869702 ], "weight": 4, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0134-01" ] }, { "cite": "91 N.M. 262", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571043 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0262-01" ] }, { "cite": "85 N.M. 295", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770810 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0295-01" ] }, { "cite": "92 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557080 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0001-01" ] }, { "cite": "95 N.M. 81", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575549 ], "weight": 5, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/95/0081-01" ] }, { "cite": "97 N.M. 585", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555121 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0585-01" ] } ], "analysis": { "cardinality": 430, "char_count": 6637, "ocr_confidence": 0.777, "pagerank": { "raw": 8.51171814252801e-08, "percentile": 0.486848074926376 }, "sha256": "8f45bb65356a13a9cb3f79e6f29eb501d3caf180ed0a5d00dcbdb2034d7b1c07", "simhash": "1:a63c3ccf9c531952", "word_count": 1068 }, "last_updated": "2023-07-14T21:45:38.267108+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and NEAL, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Louie Celestino ROYBAL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWALTERS, Chief Judge.\nDefendant appeals from conviction of two counts of aggravated battery and one count of unlawful carrying of a firearm in a licensed liquor establishment. The docketing statement raised three issues, and summary affirmance was proposed. Defendant\u2019s timely memorandum in opposition and motion to amend the docketing statement responded only to the question of sufficient evidence to show that the liquor establishment was licensed at the time of the offense. The motion raised the additional issue of failure to instruct on essential elements of the offense of unlawful carrying of a firearm. Defendant has not opposed summary affirmance of the other issues contained in his first docketing statement. Those issues are, therefore, abandoned. State v. Martinez, 97 N.M. 585, 642 P.2d 188 (Ct.App.1982).\nWe again assigned the appeal to the summary calendar, with affirmance proposed. Defendant\u2019s memorandum in opposition was timely. We affirm.\nAn employee of the Alcoholic Beverage Control agency identified the pertinent liquor license applications and testified that those applications had been approved. Defendant argues that this evidence constitutes less than a prima facie showing of licensure. State v. Soto, 95 N.M. 81, 619 P.2d 185 (1980). The question on appeal is whether that testimony provided sufficient evidence from which a jury could infer that the establishment was licensed. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). Soto, supra, establishes that the evidence was sufficient.\nDefendant was convicted of unlawful carrying of a firearm into a liquor establishment, NMSA 1978, \u00a7 30-7-3.\nSection 30-7-3 provides in part:\nA. Unlawful carrying of a firearm in an establishment licensed to dispense alcoholic beverages consists of carrying a loaded or unloaded firearm on any premises licensed by the department of alcoholic beverages except:\n(1) by a law enforcement officer in the lawful discharge of his duties;\n(2) by the owner, lessee, tenant or operator of the licensed premises or their agents, including * * * security personnel\n(3) by a person in that area of the licensed premises * * * rented on a daily or short-term basis for sleeping or residential occupancy * * * ; or\n(4) by a person on that area of a licensed premises primarily utilized for vehicular traffic or parking.\nThere is no uniform jury instruction for the offense of unlawful carrying of a firearm into a liquor establishment. The instruction given was in accordance with the opening paragraph of the statute, as follows:\nFor you to find the defendant guilty of unlawful carrying of a firearm in an establishment licensed to dispense alcoholic beverages, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n1. The defendant carried a loaded or unloaded firearm while in the Escondido Lounge;\n2. At the time the defendant carried a firearm into the Escondido Lounge, it was an establishment licensed to dispense alcoholic beverages;\n3. This happened in New Mexico on or about the 7th day of February, 1982.\nDefendant now contends that the listing of the persons excepted in subsection A of \u00a7 30-7-3 constitutes an essential element of the offense, and failure to instruct on those exceptions was jurisdictional and reversible error. State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973).\nBoth State v. Montoya, 91 N.M. 262, 572 P.2d 1270 (Ct.App.1977), and State v. Soto, supra, hold that the essential elements of this offense are found in the \u201copening paragraph\u201d of subsection A. Thus, the list of exceptions that follows the opening paragraph would not be, under Montoya or Soto, supra, an essential element of the offense.\nThe general rule is that a defendant must prove that he is within an exception to a penal statute in order to take advantage of it; the State is generally not required to negative those exceptions. 1 Wharton\u2019s Criminal Evidence \u00a7 20 (13th ed. 1972); State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977); Cf. McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922). (See also State v. Everidge, 77 N.M. 505, 424 P.2d 787 (1967); NMSA 1978, \u00a7 30-31-37 (Repl.Pamp.1980); and NMSA 1978, UJI Crim. 36.43 (Repl.Pamp.1982), relative to the defendant\u2019s burden of going forward with evidence showing he is exempted from the Controlled Substances Act.) The docketing statement does not offer any facts showing that defendant came within any of the exceptions. It equivocates, and recites: \u201cAs defense counsel did not raise this issue, and is now' unavailable, it is unknown whether evidence exists to support any of the elements not instructed upon. * * * \u201d\nOne of the purposes of a docketing statement is to advise the court of facts supporting appellant\u2019s contention, and the purpose of requiring trial defense counsel to prepare the docketing statement is to have those facts stated by one who was present at trial and has personal knowledge of the facts shown by the evidence. It was never contemplated that appellate counsel would be permitted to speculate about facts in order to raise an issue that a transcript of the trial testimony \u201cmight\u201d develop or support. See State v. Jacobs, 91 N.M. 445, 575 P.2d 954 (Ct.App.1978). Even were we to assume that the enumeration of persons excepted is an \u201celement\u201d of the crime, nothing in defendant\u2019s requested instructions so much as intimates that exception from the statute was raised as a defense, or that trial counsel felt there was evidence to support such a defense. See Bell, supra. If defendant ordinarily must prove that he is excepted from the operation of a penal statute, obviously the jury need not be instructed on those exceptions when defendant has not cited proof or stated any facts to show that they applied to him. NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 207(d)(3) (Spec.Supp.1983).\nBecause failure to instruct on the statutory exceptions is not jurisdictional error, and defendant has not alleged that he objected to this omission at trial, and because the record does not disclose that any instruction requested by defendant would have raised such a defense, the issue has not been preserved for review. State v. Bell, supra.\nThe judgment is affirmed.\nIT IS SO ORDERED.\nDONNELLY and NEAL, JJ., concur.", "type": "majority", "author": "WALTERS, Chief Judge." } ], "attorneys": [ "Paul G. Bardacke, Atty. Gen., Santa Fe, for plaintiff-appellee.", "Janet E. Clow, Chief Public Defender, David Stafford, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "667 P.2d 462\nSTATE of New Mexico, Plaintiff-Appellee, v. Louie Celestino ROYBAL, Defendant-Appellant.\nNo. 7212.\nCourt of Appeals of New Mexico.\nJuly 12, 1983.\nPaul G. Bardacke, Atty. Gen., Santa Fe, for plaintiff-appellee.\nJanet E. Clow, Chief Public Defender, David Stafford, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0155-01", "first_page_order": 187, "last_page_order": 189 }