{
  "id": 2867066,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Eliseo Manuel MATAMOROS, Defendant-Appellant",
  "name_abbreviation": "State v. Matamoros",
  "decision_date": "1976-03-09",
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    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Eliseo Manuel MATAMOROS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nDefendant appeals his conviction of shoplifting. The record is insufficient to show the trial court erred in excluding certain defense exhibits on the grounds of irrelevancy. See State v. Marquez, 87 N.M. 57, 529 P.2d 283 (Ct.App.1974). The issue discussed concerns two instructions given by the trial court.\nThe instructions follow the language used in \u00a7 40A-16-21, N.M.S.A. 1953 (2d Repl. Vol. 6). They read:\n\u201cNo. 3. You are instructed that any person who willfully conceals merchandise on his person shall be prima facie presumed to have concealed the merchandise with the intention of converting it without paying for it. (Our emphasis.)\n\u201cNo. 4. Your are instructed that if any merchandise is found concealed upon any person or among his belongings it shall be prima facie evidence of willful concealment.\u201d (Our emphasis.)\n\u201cPrima facie presumed\u201d in instruction No. 3 means presumed to be true absent evidence to the contrary. \u201cPrima facie evidence\u201d means evidence sufficient to establish a fact absent evidence to the contrary. See \u201cprima facie\u201d and \u201cprima facie evidence\u201d in Black\u2019s Law Dictionary (4 ed. 1951). Compare the definition of \u201cprima facie showing\u201d in Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).\nThe word \u201cshall\u201d is mandatory. Section 1-2-2(1), N.M.S.A. 1953 (Repl. Vol. 1, Supp. 1975).\nInstruction No. 3 stated that upon proof that a person had willfully concealed merchandise on his person, the jury was to take it as true, absent evidence to the contrary, that the merchandise was concealed with the intention of converting the merchandise without paying for it.\nInstruction No. 4 stated that if merchandise is found concealed upon any person or among his belongings, the jury was to consider that such concealment established willful concealment absent evidence to the contrary.\nEvidence Rule 303(a) states: \u201cExcept as otherwise provided by statute, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.\u201d There being no statute providing otherwise, the provisions of \u00a7 40A-16-21, supra, (which are stated in instructions Nos. 3 and 4) were subject to Evidence Rule 303.\nEvidence Rule 303(c) states in part: \u201cWhenever the existence of a presumed fact against the accused is submitted to the jury, the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so.\u201d (Our emphasis.) This provision \u201cincorporates the constitutional requirement that presumptions not be conclusive in criminal cases even if unrebuted.\u201d State v. Jones, 88 N.M. 107, 537 P.2d 1006 (Ct.App.1975).\nInstructions Nos. 3 and 4 violated the above emphasized portion of Evidence Rule 303(c). Defendant objected to the two instructions, but the only portion of his objection which can be considered as going to the above quoted portion of Evidence Rule 303(c) was a claim that the instructions created an unconstitutional presumption. This claim was a general one and did not alert the trial court to an issue under Evidence Rule 303(c). Accordingly it will not be considered further. State v. Jones, supra.\nOne of defendant\u2019s specific objections was that: \u201c * * * it (instructions Nos. 3 and 4) destroys the beyond a reasonable doubt standard because you have the presumption standing as the evidence * * * \u00bb\nProof beyond a reasonable doubt is required for a criminal conviction. See U.J.I. Crim. 40.60. Can there be proof beyond a reasonable doubt if the proof depends on a presumed fact? Yes. By presumed fact we mean a permissible inference from a basic fact or facts. State v. Jones, supra. The reasonable doubt standard is met if the evidence necessary to invoke the inference (the evidence as a whole, including the basic fact or facts) is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).\nDefendant claims that application of the reasonable doubt standard to the connection between the basic fact and the inferred fact is constitutionally required. Barnes v. United States, supra, did not so hold. Barnes, supra, states that if the reasonable doubt standard is met, due process is also met. We need not consider whether the reasonable doubt standard is a constitutional requirement. That standard applies in New Mexico because it is a part of our Evidence Rules.\nEvidence Rule 303(b) reads in part: \u201cThe judge is not authorized to direct the jury to find a presumed fact against the accused. When the presumed fact establishes guilt (instruction No. 3) or is an element of the offense (instruction No. 4) or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt.\u201d (Our emphasis.)\nThe shoplifting offense was willfully concealing a rug with the intention of converting it without paying for it. Section 40A-16-20(A) (2), N.M.S.A. 1953 (2d Repl. Vol. 6). Defendant contends the combination of the two instructions did not meet the reasonable doubt standard: \u201c * * * concealment is willful (instruction No. 4); and that willful concealment manifests an intention to convert without paying (instruction No. 3). Working in tandem, these two presumptions allow the prosecution to make its entire case from simple proof of concealment.\u201d\nThis contention overlooks the \u201cevidence as a whole, including the evidence of basic facts\u201d. Defendant entered the store with a \u201cblanket wrapped around him\u201d. He went to the rack where the expensive rugs were kept. When the storekeeper went to see if she could help defendant with anything, defendant turned around and started towards the door. The storekeeper noticed that one rug was missing but \u201ccouldn\u2019t see it on him anywhere\u201d. The storekeeper waited until defendant got to the door and then asked defendant to give the rug back. Defendant had the rug \u201cunder his own blanket.\u201d The rug had been folded up. Before defendant returned the rug the storekeeper could not see any part of it. The shop had just been opened for the day. The storekeeper knew the rug was gone and defendant was the only one who had been near the rack when the rug disappeared. Defendant did not approach the cash register at any time. This evidence was sufficient for a rational juror to find each of the inferred facts beyond a reasonable doubt. We add that instruction No. 4 was a superfluous instruction because the evidence shows a willful concealment.\nEvidence Rule 303(c) reads in part: \u201c * * * if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.\u201d This was not done. There was no request for such an instruction. This error is not before us for review. State v. Jones, supra.\nOral argument is unnecessary. The judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Gerald Chakerian, Asst. Appellate Defender, Santa Fe, for defendant-appellant.",
      "Toney Anaya, Atty. Gen., Albert V. Gonzales, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "547 P.2d 1167\nSTATE of New Mexico, Plaintiff-Appellee, v. Eliseo Manuel MATAMOROS, Defendant-Appellant.\nNo. 2212.\nCourt of Appeals of New Mexico.\nMarch 9, 1976.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Gerald Chakerian, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Albert V. Gonzales, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0125-01",
  "first_page_order": 161,
  "last_page_order": 164
}