{
  "id": 2770170,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Amado LOPEZ, Defendant-Appellant",
  "name_abbreviation": "State v. Lopez",
  "decision_date": "1973-11-21",
  "docket_number": "No. 1147",
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      "reporter": "P.",
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  "analysis": {
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  "last_updated": "2023-07-14T15:38:26.265107+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HERNANDEZ and LOPEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Amado LOPEZ, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nSUTIN, Judge.\nDefendant was convicted on two counts for fraudulent use of a credit card. Section 40A-16-33, subd. A(3), N.M.S.A.1953 (2d Repl.Vol. 6). He appeals. We affirm.\nOn November 10, 1971, defendant purchased merchandise from Miller\u2019s Ltd. and charged it on an American Express card issued to Ray B. Christianson. Defendant signed the sales slip \u201cRay B. Christianson\u201d. On November 11, 1971, defendant attempted to make additional purchases from the same establishment. When asked for further identification, defendant said he left his driver\u2019s license in his car. Defendant left the store ostensibly to get his driver\u2019s license. He did not return. The purchases and credit card remained in the store. Christianson died of an apparent heart attack on November 6, 1971, and his wallet was inexplicably missing from his personal effects.\nDefendant contends that the admission of testimony of the November 11, 1971 event was erroneous because proof of a distinct criminal offense, independent of the offense with which the accused is being tried, is prejudicial error. See State v. Garcia, 83 N.M. 51, 487 P.2d 1356 (Ct.App.1971). Defendant\u2019s contention is answered in State v. Lord, 42 N.M. 638, 651, 84 P.2d 80 (1938). There are several exceptions to the general rule that evidence of offenses and crimes, other than that for which the defendant is on trial, cannot be introduced. Among these exceptions are proof of motive, intent, absence of a mistake or accident, a common scheme or plan, or the identity of the person charged with the commission of the crime.\nThe November 11 incident is strong evidence of defendant\u2019s intent and his plan. The concurrence of time, place and modus operandi also tends to establish the identity of the accused.\nFurthermore, defendant\u2019s actions in the November 11 incident aided in establishing his fraudulent intent.\nSecondly, defendant contends it was error to allow Miller\u2019s Ltd. employee, who dealt with defendant, to express his opinion on whether he had reason to believe that defendant intended to defraud Miller\u2019s Ltd. Defendant objected because it called for a conclusion and the employee was not an expert witness.\nThe defendant\u2019s objection was valid and his motion should have been sustained. It was within the province of the jury to draw inferences and form opinions. There are certain situations where a non-expert opinion can be received. This was not one of them. See State v. Cooley, 19 N.M. 91, 140 P. 111, 52 L.R.A. (N.S.) 230 (1914); Bunton v. Hull, 51 N.M. 5, 177 P.2d 168 (1947) ; Rule 701, Supreme Court Rules of Evidence. However, this error was not prejudicial. Considering the strong evidence in this record, there was no reasonable probability that the layman\u2019s opinion contributed to defendant\u2019s conviction. The substantial rights of the defendant were not affected. Section 21-2-1(17) (10), N. M.S.A.1953 (Repl.Vol. 4); Jewell v. Seidenberg, 82 N.M. 120, 477 P.2d 296 (1970).\nThirdly, defendant claims the right to a directed verdict. The motion for a directed verdict was made at the close of the State\u2019s case, but not at the close of all the evidence. It is not subject to review. The defendant waived his motion by introducing evidence on his behalf without renewing his motion at the close of the whole case. State v. Sandoval, 83 N.M. 599, 495 P.2d 379 (Ct.App.1972). Nevertheless, the evidence has been reviewed and is sufficient to sustain the conviction. State v. Hunt, 83 N.M. 546, 494 P.2d 624 (Ct.App.1972).\nFourthly, defendant claims error for failure to give an instruction that the jury must first find that defendant \u201cdid not have the consent to use the card by the person to whom it was issued.\u201d Consent is not an essential element of the crime with which defendant was charged. See \u00a7 40A-16-33, subd. A (3), supra.\nAffirmed.\nIt is so ordered.\nHERNANDEZ and LOPEZ, JJ., concur.",
        "type": "majority",
        "author": "SUTIN, Judge."
      }
    ],
    "attorneys": [
      "George H. Perez, Albuquerque, for defendant-appellant.",
      "David L. Norvell, Atty. Gen., Agust\u00edn T. Gurule, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "516 P.2d 1125\nSTATE of New Mexico, Plaintiff-Appellee, v. Amado LOPEZ, Defendant-Appellant.\nNo. 1147.\nCourt of Appeals of New Mexico.\nNov. 21, 1973.\nGeorge H. Perez, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Agust\u00edn T. Gurule, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0742-01",
  "first_page_order": 804,
  "last_page_order": 806
}