{ "id": 2836431, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Clifford JONES, Defendant-Appellant", "name_abbreviation": "State v. Jones", "decision_date": "1975-06-18", "docket_number": "No. 1777", "first_page": "110", "last_page": "115", "citations": [ { "type": "official", "cite": "88 N.M. 110" }, { "type": "parallel", "cite": "537 P.2d 1006" } ], "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": "81 N.M. 623", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370694 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0623-01" ] }, { "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": "87 N.M. 155", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835733 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0155-01" ] }, { "cite": "85 N.M. 80", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2774955 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0080-01" ] }, { "cite": "85 N.M. 19", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771596 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0019-01" ] }, { "cite": "81 N.M. 173", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358615 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0173-01" ] }, { "cite": "82 N.M. 17", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327629 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0017-01" ] }, { "cite": "120 P. 304", "category": "reporters:state_regional", "reporter": "P.", "year": 1911, "opinion_index": 0 }, { "cite": "16 N.M. 652", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4682557 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/nm/16/0652-01" ] }, { "cite": "306 F.2d 743", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 256713 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/f2d/306/0743-01" ] }, { "cite": "113 U.S.App.D.C. 136", "category": "reporters:state", "reporter": "U.S. App. D.C.", "year": 1962, "opinion_index": 0 }, { "cite": "412 U.S. 837", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176639 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/412/0837-01" ] }, { "cite": "380 U.S. 63", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525290 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0063-01" ] }, { "cite": "326 U.S. 607", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6158185 ], "weight": 4, "year": 1945, "opinion_index": 0, "case_paths": [ "/us/326/0607-01" ] }, { "cite": "86 N.M. 713", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2825455 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/86/0713-01" ] }, { "cite": "188 F.2d 932", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1218406 ], "year": 1951, "pin_cites": [ { "page": "937" } ], "opinion_index": 1, "case_paths": [ "/f2d/188/0932-01" ] }, { "cite": "443 F.2d 1050", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 774004 ], "year": 1971, "pin_cites": [ { "page": "1063" } ], "opinion_index": 1, "case_paths": [ "/f2d/443/1050-01" ] }, { "cite": "86 N.M. 104", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2827602 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/86/0104-01" ] } ], "analysis": { "cardinality": 739, "char_count": 15662, "ocr_confidence": 0.812, "pagerank": { "raw": 2.0364860143043873e-07, "percentile": 0.747246074964216 }, "sha256": "2eb9aa0a4c99aec892a6d3ccd90cf77d4e49708b2f4ec0c7dcc389de17a722db", "simhash": "1:b7a3ce6a332489f0", "word_count": 2568 }, "last_updated": "2023-07-14T21:34:46.516747+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD C. J., concurs", "LOPEZ, J., dissenting." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Clifford JONES, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nThis appeal is concerned with the propriety of instructing the jury with regard to the following presumption:\n\u201cB. The requisite knowledge or belief that property has been stolen is presumed in the case of an individual or dealer who:\n\u201c(1) is found in possession or control of property stolen from two [2] or more persons on separate occasions * * * \u201d Section 40A-16-11(B), N.M.S.A.1953 (2d Repl.Vol. 6, 1972).\nDefendant was convicted of receiving stolen property contrary to \u00a7 40A-16-11, N.M.S.A.1953 (2d Repl.Vol. 6, 1972). The trial court instructed the jury pursuant to \u00a7 40A-16-11 (B), supra. Defendant now appeals contending that the giving of the instruction in the manner in which it was given and under the evidence adduced at trial was error. We affirm.\nDefendant\u2019s two-fold attack on his conviction is based on the trial court\u2019s instruction Nos. 11 and 6 which read as follows:\n\u201c11. You are further instructed that the requisite knowledge or belief that the property has been stolen is presumed in the case of an individual who is found in possession or control of property stolen from two or more persons on separate occasions.\u201d\n\u201c6 * * *\n\u201cA presumption is a conclusion which the law requires the jury to make from particular facts, in the absence of convincing evidence to the contrary. A presumption continues in effect until overcome or outweighed by evidence to the contrary; but unless so outweighed the jury is bound to find in accordance with the presumption.\u201d\nDefendant\u2019s initial attack on these instructions is that they fail to comply with Rule of Evidence 303, \u00a7 20-4-303, N.M.S.A. 1953 (Repl.Vol. 4, 1970, Supp.1973), and that such failure is violative of his constitutional right to due process of law. Defendant, for purposes of this portion of his argument, makes no contention that the presumption itself is unconstitutional. He argues only that the instructions in the instant case giving mandatory effect to the presumption violates R.Evid. 303(c), supra, which directs the trial court to instruct the jury that it may, but is not required, to find the presumed fact if it finds the existence of the basic facts. Thus, this portion of defendant\u2019s argument is essentially directed at instruction No. 6. It is further submitted that R.Evid. 303(c), supra, is a codification of the United States Supreme Court\u2019s edict against mandatory presumptions in criminal cases. See Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1945).\nThe instant instructions clearly violate R.Evid. 303(c), supra. R.Evid. 303(c), supra, specifically mandates an instruction that the jury is not required to find the presumed fact simply because there is sufficient evidence of the basic facts. The state argues that instruction No. 6 substantially complied with this mandate in that it told the jury that the presumption could be overcome by evidence to the contrary. The point, however, of R. Evid. 303(c), supra, is that even if there is no evidence to the contrary, the jury should be instructed that it is not bound to find in accordance with the presumption. See Committee Commentary to R.Evid. 303(b) and (c), supra. R.Evid. 303(c), supra, incorporates the constitutional requirement that presumptions not be conclusive in criminal cases even if unrebutted. See Bollenbach v. United States, supra; United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed. 2d 380 (1973); Bray v. United States, 113 U.S.App.D.C. 136, 306 F.2d 743 (1962).\nIn the case at bar, instruction No. 11 told the jury that knowledge is presumed from a certain kind of possession. Instruction No. 6 told the jury that a presumption is a conclusion required to be made unless rebutted, and further that the jury was bound by the conclusion unless and until evidence to the contrary outweighed it. These instructions were in direct conflict with Rule 303(c), supra. However, defendant did not object to instruction No. 6. Neither did his objection to instruction No. 11 alert the trial court to the vice of instruction No. 6. See infra. Defendant has waived the error. R.Cr.P. 41, \u00a7 41-23-41, N.M.S.A.1953 (2d Repl.Vol. 6, 1972 Supp.1973).\nThe second prong of defendant\u2019s argument is directed solely at instruction No. 11. Defendant\u2019s objection to this instruction at trial was that \u201c * * * it is not a proper statement of the law and is not supported by the evidence before the jury.\u201d On appeal defendant contends only that since the evidence did not demonstrate that the defendant possessed both items of property simultaneously, the instructions were unsupported by the evidence. Defendant contends that instructions pursuant to \u00a7 40A-16-11(B), supra, may only be given when the evidence shows simultaneous possession of property stolen from two or more persons on separate occasions.\nDefendant is incorrect in this assertion. We first note, however, that the record supports defendant\u2019s contention that the evidence did not show simultaneous possession. Police officers recovered a stolen television set from the defendant\u2019s possession in late February of 1974. The set must have been stolen shortly before that time although the owner testified that the theft occurred in March or April. In early March, the police obtained information that the defendant had possessed guns stolen in December of 1973, but had already disposed of them. There is no evidence as to when defendant possessed the guns.\nIt is important to realize that while the legislature (in \u00a7 40A-16-11(B), supra), the Supreme Court (in R.Evid. 303, supra), and we (in this opinion thus far) have referred to the rule contained in \u00a7 40A-16-11(B), supra, as creating a presumption, it is more appropriately denominated a \u201cstandardized inference.\u201d See generally Me-Cormick on Evidence, \u00a7\u00a7 342-346 (2d Ed. 1972). That is to say that a \u201ctrue\u201d presumption shifts the burden of proof; if proof of the basic facts are introduced into evidence, the presumed fact is also taken to be proved in the absence of evidence to the contrary. If no evidence to the contrary is forthcoming, the court is compelled to direct a verdict against the party now having the burden of producing such evidence. In other words, a \u201ctrue\u201d presumption is conclusive on the jury in the absence of evidence to the contrary. Territory v. Lucero, 16 N.M. 652, 120 P. 304 (1911). An inference, on the other hand, is nothing more than a permissible deduction from the evidence. Territory v. Lucero, supra.\nThe effect of R.Evid. 303(c), supra, is to abolish \u201ctrue\u201d presumptions in criminal cases. This puts the \u201cpresumptions\u201d contained in \u00a7 40A-16-11 (B), supra, into the category of a mere permissible inference from the evidence provided that the jury is properly instructed under R. Evid. 303(c), supra. This contention is mandated by the constitutional requirements heretofore stated. Thus, the language of \u00a7 40A-16-11(B), supra, must be read:\n\u201cB. The requisite knowledge or belief that property has been stolen [may be] presumed * *\nThe question, then, with which we must deal on this appeal is whether it is permissible to infer knowledge that property is stolen from proof of two separate instances of possession of property stolen from two or more persons on different occasions.\nIt is settled law that evidence of a defendant\u2019s prior possession of other stolen property is admissible to establish the knowledge of a defendant that the property was stolen. State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App.1970). The evidence is admissible because it is permissible to infer knowledge from proof of more than one instance of stolen property. See State v. Lindsey, 81 N.M. 173, 464 P.2d 903 (Ct.App.1969). The reason for this admissibility is that there is a rational connection between the facts proved and the ultimate fact inferred. Barnes v. United States, supra. The possession need not be simultaneous possession but the time span between the non-simultaneous possessions must be reasonable. What is reasonable must be decided on a case by case basis. Under the facts of the instant case we hold the time span reasonable. There was a rational connection between the facts proved and the ultimate fact inferred.\nYet the jury was not properly instructed in the case at bar. Thus defendant concludes his argument with the assertion that a mandatory presumption that attributes guilty knowledge to one in non-simultaneous possession of property stolen from two individuals on separate occasions is unconstitutional. As stated previously, no objection was made to the mandatory aspect of the instructions. We therefore view defendant\u2019s final contention as being unreviewable unless it can be said that the error, if any, is fundamental or jurisdictional. State v. Jaramillo, 85 N.M. 19, 508 P.2d 1316 (Ct.App.1973). The doctrine of fundamental error is applicable only if the innocence of the defendant appears indisputable or if the question of his guilt is so doubtful that it would shock the conscience to permit his conviction to stand. State v. Parker, 85 N.M. 80, 509 P.2d 272 (Ct.App.1973). We have reviewed the record and conclude that the instant one is not such a case.\nIt is true that some constitutional violations may render a court incompetent to convict a defendant. Such jurisdictional errors may be raised for the first time on appeal. State v. Foster, 87 N.M. 155, 530 P.2d 949 (Ct.App.1974). However, in this case, the jury was properly instructed as to all the essential elements of the crime. State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973). The jury was instructed that defendant was presumed to be innocent and that his guilt had to be proved beyond a reasonable doubt. See State v. Harrison, 81 N.M. 623, 471 P.2d 193 (Ct.App.1970). In short, we do not believe that the error alleged with regard to the instructions in the case at bar is such as divests the trial court of jurisdiction.\nOral argument in this case is unnecessary.\nDefendant\u2019s conviction is affirmed.\nIt is so ordered.\nWOOD C. J., concurs\nLOPEZ, J., dissenting.", "type": "majority", "author": "HENDLEY, Judge." }, { "text": "LOPEZ, Judge\n(dissenting).\nI respectfully dissent.\nThere is no question that \u00a7 20-4 \u2014 303, supra, has been violated. The majority opinion fails to remedy this error on the grounds that defendant never clearly and graphically demonstrated to the trial court the total import of his objection. It is rather as if substituting the court\u2019s mandatory presumption for the jury\u2019s burden of proof beyond a reasonabe doubt were mere harmless error. \u201cThe violation of a defendant\u2019s constitutional right is never harmless.\u201d State v. Barela, 86 N.M. 104, 519 P.2d 1185 (Ct.App.1974).\nThe majority has completely distorted the issue of this case. The true question for decision is not, as is held above, whether a jury could infer knowledge or belief under \u00a7 40A-16-11, supra. Rather, the whole point of defendant\u2019s complaint on appeal is that his statutory and constitutional rights were violated by the error of the trial court.\nThe majority, further, hides the admitted error of the court below in a cloud of dicta concerning \u201cstandardized inferences\u201d: when the court lets the jury infer when it, arguably, did not know it had the right to infer. The majority might like to have \u00a7 40A-16-11 (B), supra, read \u201cmay be presumed\u201d, but it is clear that both the actual statute and the instruction given read \u201cis presumed\u201d, a mandatory directive in anybody\u2019s language.\nBut after all the verbiage about \u201cinferences\u201d and \u201cpresumptions\u201d (a distinction not applicable to this case; contrast Chief Judge Bazelon\u2019s opinion in Bray v. United States, cited by the majority) even the rest of this panel must ultimately face the real issue: what to do with the clearly erroneous instruction ? Their answer, obviously, is to do nothing.\nThe error in this case involves an evi-dentiary ruling, a violation of Rule 303, supra. The defendant, not being in a position to offer another instruction (he wished none), and not being in a position to offer other evidence on the matter (his case was closed), did what he could: he objected. As grounds for his objection, he stated that the trial court erred as a matter of law. Further, the matter involved a substantial right of the defendant: his right to a jury verdict on an essential element of the alleged crime. \u201c * * * a peremptory ruling against the accused in a criminal case, even as to a single element of the crime, is abhorrent to the criminal law * * McCormick on Evidence \u00a7 342 (2d Ed. 1972).\nNevertheless, granting that reasonable minds might differ as to whether defendant had met the burden of subsection (a) of Rule 103, \u00a7 20-4-103, N.M.S.A.1953 (Repl.Vol. 4, Supp.1973), it simply cannot be doubted that subsection (d) of the rule is applicable in this case:\n\u201c(d) Plain Error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.\u201d\nThe definitional problem, when you use \u201cplain error\u201d, is handled many ways :\n\u201cThus it is said that \u2018plain error\u2019 means \u2018error both obvious and substantial,\u2019 or \u2018serious and manifest errors,\u2019 or \u2018seriously prejudicial error,\u2019 or \u2018grave errors which seriously affect substantial rights of the accused.\u2019 \u201d Wright & Miller, Federal Practice and Procedure, \u00a7 856 (1969).\n\u201cThis court is reluctant to consider objections raised for the first time on appeal. * * * We are considerably more reluctant to notice on our own motion, errors not raised below when the parties have not even urged us to do so. Nonetheless, we are empowered to notice, in our discretion, \u2018[p]lain errors or defects affecting substantial rights\u2019 which were brought neither to our attention nor to the attention of the trial court. * * * We may do so when confronted with \u2018unusual circumstances involving seriously prejudicial deficiencies in the trial process,\u2019 * * * or when \u2018it appears to be necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.\u2019 \u201d United States v. Bacall, 443 F.2d 1050, 1063 (9th Cir. 1971).\nThe Plain Error Rule must be read in conjunction with the timely objection rule (our 103(a) ) which provides that no party may assign as error an instruction to which he has not objected before the jury retires. Despite the language of 103(a), a court may notice an erroneous instruction as plain error, particularly when some objection is made, as in the instant case. Apodaca v. United States., 188 F.2d 932, 937 (10th Cir. 1951). See cases in Wright & Miller, supra, at f. n. 97.\nThe \u201cfundamental right\u201d or \u201csubstantial right\u201d denied the defendant in the case at bar was, again, the right to have his case determined by a jury. The mandatory instruction given by the trial court denied this right as to the essential element of intent.\nAn evidentiary matter being involved, this is precisely the situation for which the Plain Error Rule was designed. Compare State v. Sanchez, 86 N.M. 713, 526 P.2d 1306 (Ct.App.1974).\nRule 303, and both the New Mexico and United States Constitutions were violated. Plain error occurred in its strictest form. Defendant\u2019s conviction should be reversed and the cause should be remanded for a new trial.", "type": "dissent", "author": "LOPEZ, Judge" } ], "attorneys": [ "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Sarah M. Singleton, Asst. Appellate Defender, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Jay F. Rosen-thal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "537 P.2d 1006\nSTATE of New Mexico, Plaintiff-Appellee, v. Clifford JONES, Defendant-Appellant.\nNo. 1777.\nCourt of Appeals of New Mexico.\nJune 18, 1975.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Sarah M. Singleton, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Jay F. Rosen-thal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0110-01", "first_page_order": 140, "last_page_order": 145 }