{ "id": 2837443, "name": "STATE of New Mexico, Plaintiff-Appellee, v. David JORDAN, Defendant-Appellant", "name_abbreviation": "State v. Jordan", "decision_date": "1975-08-13", "docket_number": "No. 1949", "first_page": "230", "last_page": "233", "citations": [ { "type": "official", "cite": "88 N.M. 230" }, { "type": "parallel", "cite": "539 P.2d 620" } ], "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": "86 N.M. 71", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2828365 ], "weight": 3, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0071-01" ] }, { "cite": "88 N. M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837300 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0150-01" ] }, { "cite": "76 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500657 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0111-01" ] }, { "cite": "78 N.M. 600", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324063 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0600-01" ] }, { "cite": "88 N.M. 153", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2841046 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0153-01" ] }, { "cite": "85 N.M. 125", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772846 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0125-01" ] }, { "cite": "519 P.2d 561", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1974, "opinion_index": 0 }, { "cite": "112 Cal.Rptr. 513", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1974, "opinion_index": 0 }, { "cite": "10 Cal.3d 857", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2299840 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/cal-3d/10/0857-01" ] }, { "cite": "86 N.M. 314", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2828869 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0314-01" ] }, { "cite": "85 N.M. 328", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770362 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0328-01" ] }, { "cite": "86 N.M. 548", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2827337 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0548-01" ] }, { "cite": "86 N. M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824335 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0039-01" ] }, { "cite": "83 N. M. 260", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336237 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0260-01" ] } ], "analysis": { "cardinality": 533, "char_count": 8812, "ocr_confidence": 0.811, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08495109174318657 }, "sha256": "907fcc2575f4a2260c04ed2cc89f9bb9b9b1c96d066b935e09ef632d9cd8be86", "simhash": "1:131f34ef9d640dbf", "word_count": 1489 }, "last_updated": "2023-07-14T21:34:46.516747+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. David JORDAN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nConvicted of burglary, defendant appeals. He alleges error on the basis of: (1) insufficient evidence; (2) prosecutor misconduct; (3) defects in the habitual offender proceedings; and (4) an improper habitual offender sentence.\nSufficiency of the Evidence\nRhonda was living in her parents\u2019 home during their absence. On the evening of August 15th she got married. Returning after the wedding festivities she discovered the back door to her bedroom open and the lights on. The door was locked when she left for her wedding. Several rifles and shotguns had been taken.\nTina was staying at the residence of Susan. Subsequent to the burglary, defendant telephoned Tina at Susan\u2019s residence. He told Tina that there were some guns in the back yard in some weeds, to bring them inside the house, that the guns were \u201chot\u201d. Tina brought the guns inside. Susan sold one of the guns to Gurule a couple of weeks after they appeared in the house. Susan and Tina left Farmington for Hobbs the last of August or first of September. This evidence is sufficient to show that defendant had knowledge of the location of the guns and knowledge that the guns had been stolen not later than August 17th. The burglary occurred the evening of August 15th.\nDefendant admitted to Susan that he stole the guns. He also told Susan the guns were his.\nRhonda had placed the guns in an inside storage room of the residence about a week prior to the wedding. Johnny saw her place the guns in the storage room.\nJohnny and defendant had been invited to the wedding and the subsequent festivities but did not attend. Johnny was to have been \u201cbest man\u201d but excused himself on the basis that he had to work. On the evening of the wedding, about 9:30 or 10:00 p. m., Johnny\u2019s car was parked near the residence. Johnny was seen looking in through the front windows of the residence; defendant was seen coming around from the side of the house where the storage room was located. The burglary was discovered about midnight.\nThe guns had been somewhat hidden in the storage room; one had to wade through the rest of the stuff in the storage room to get to the guns. Nothing had been taken except the guns and nothing, other than the guns, had been disturbed.\nJohnny\u2019s car was parked near a bar at 1:00 a. m. Johnny and. defendant left the bar about 1:45 a. m. The car, driven by defendant, was stopped and searched. There were two dusty tires in the trunk. There were marks in the dust on the tires as if long objects had been laid on them. The marks were fresh.\nThe record shows that defendant possessed recently stolen property and that he came into possession of the property by theft. This evidence, together with evidence of defendant\u2019s presence at the scene near the time the crime was committed in the company of a person who knew the precise location of the property, permits the inference that defendant stole the guns during an unauthorized entry of Rhonda\u2019s residence. Compare State v. Heim, 83 N. M. 260, 490 P.2d 1233 (Ct.App.1971). The evidence is sufficient to sustain the conviction.\nAsserted Prosecutor Misconduct\nThe misconduct claim has two parts; both are directed to the prosecutor\u2019s closing argument to the jury.\n(a) Defendant asserts the prosecutor told the jurors they could not acquit defendant unless they found the prosecuting attorney guilty of a conspiracy to convict defendant. There was no objection to the allegedly improper remarks. They will not be reviewed. State v. Vallejos, 86 N. M. 39, 519 P.2d 135 (Ct.App.1974).\n(b) The prosecutor referred to defendant\u2019s admission to Susan that he had stolen the guns. Defendant objected, claiming that was not Susan\u2019s testimony. It was.\nHabitual Offender Proceedings\n(a) Defendant was charged as a habitual offender under \u00a7 40A-29-5, N.M. S.A.1953 (2d Repl.Vol. 6). He claims the charge was \u201cdefective\u201d for failure to name a specific subsection of the statute. No such claim was made in the trial court and, thus, will not be considered. Rule of Criminal Procedure 33(e)(2) ; see State v. Mata, 86 N.M. 548, 525 P.2d 908 (Ct.App.1974).\n(b) Defendant admitted the allegations in the habitual offender charge. He now claims ineffective assistance of counsel in the habitual offender proceeding because his counsel failed to inform him of the effect of \u00a7 40A-29-7, N.M.S.A.1953 (2d Repl.Vol. 6) and his rights under the statute and the Constitution. There is nothing in this record directed to the advice counsel did or did not give defendant. The claim has no support in the record.\n(c) Defendant complains of the trial court\u2019s procedure prior to his admitting the charge of being a habitual offender. Section 40A-29-7, supra, states the court shall require the defendant to say whether he is the same person as charged in the information. \u201c . . . [I]f he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he is the same person and that he has in fact been convicted of such previous crimes as charged, then the court shall sentence him . .\u201d Defendant asserts his admission could not legally be accepted because he was not \u201cduly cautioned as to his rights\u201d. The rights he claims he should have been cautioned about are those set forth in State v. Vigil, 85 N.M. 328, 512 P.2d 88 (Ct.App.1973). As to the applicability of those rights in a habitual proceeding, see State v. Bonner, 86 N.M. 314, 523 P.2d 812 (Ct.App.1974); In re Yurko, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561 (1974).\nDefendant does not claim that his admission was involuntary. His claim is that the trial court\u2019s procedure was defective. This issue is raised for the first time on appeal and will not be considered. State v. Jordan, 85 N.M. 125, 509 P.2d 892 (Ct.App.1973); See State v. Brakeman, 88 N.M. 153, 538 P.2d 795 (Ct.App.), decided July 2, 1975.\nHabitual Offender Sentence\nThe information, charging defendant as a habitual offender on the basis of the burglary, relied on two prior convictions. One of the prior convictions was a burglary in Arizona. No issue is raised concerning utilization of the Arizona burglary to enhance the sentence for the current burglary.\nThe second of the prior convictions was the sale of LSD. Defendant contends this conviction could not be utilized to enhance his sentence for the current burglary. We disagree.\nDefendant claims his LSD conviction was under the Controlled Substances Act enacted in 1972. The claim is not supported by the record. The information charges that the LSD conviction occurred in the District Court of San Juan County in April, 1972. The Controlled Substances Act carried an emergency clause. Laws 1972, ch. 84, \u00a7 61. It was effective when approved. N.M.Const., Art. IV, \u00a7 23. It was approved February 29, 1972. See footnote to Laws 1972, p. 437. Any offense occurring prior to the effective date was to be prosecuted under prior law. Laws 1972, ch. 84, \u00a7 40. We cannot tell from this record when defendant committed the offense of selling LSD and, therefore, do not know which law was applicable to that offense.\nRegardless of the law applicable to the LSD offense, the trial court properly used that offense in enhancing defendant\u2019s sentence.\nThe current crime is burglary and the enhanced sentence is for that crime. See State v. Tipton, 78 N.M. 600, 435 P.2d 430 (1967). Thus, enhancement for a current narcotic offense or a current offense under the Controlled Substances Act is not involved. State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966); State v. Alderete, 88 N. M. 150, 538 P.2d 422 (Ct.App.) decided July 2, 1975.\nIf defendant\u2019s LSD offense was for a conviction under the law prior to the Controlled Substances Act, that conviction was a prior offense which could be utilized in enhancing defendant\u2019s current burglary offense. State v. Lard, 86 N.M. 71, 519 P.2d 307 (Ct.App. 1974). The reasoning of Lard applies to prior offenses under the Controlled Substances Act. There is no conflict between the provisions of \u00a7 54-11-22(A), N.M.S.A. 1953 (Repl.Vol. 8, pt. 2, Supp. 1973) and \u00a7 40A-29-5, supra. Nor do we discern any legislative intent within the Controlled Substances Act to prohibit use of a Controlled Substances Act conviction to enhance a subsequent burglary conviction. It is the fact of the prior felony that is the basis for the enhanced sentence for the current burglary. State v. Lard, supra.\nOral argument is unnecessary. The judgment and sentence are affirmed.\nIt is so ordered.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Scott McCarty, Marchiondo & Berry, P. A., Albuquerque, for defendant-appellant.", "Toney Anaya, Atty. Gen., Jay F. Rosen-thal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "539 P.2d 620\nSTATE of New Mexico, Plaintiff-Appellee, v. David JORDAN, Defendant-Appellant.\nNo. 1949.\nCourt of Appeals of New Mexico.\nAug. 13, 1975.\nScott McCarty, Marchiondo & Berry, P. A., Albuquerque, for defendant-appellant.\nToney Anaya, Atty. Gen., Jay F. Rosen-thal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0230-01", "first_page_order": 260, "last_page_order": 263 }