State v. Bryant

                                                                        Office of the
                                                                            Director           New Mexico
                                                                                               Compilation
                                                                         2023.03.06            Commission
                                                                    '00'07- 10:00:29
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: August 8, 2022

No. A-1-CA-38175

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

GEORGE CALAGUAS BRYANT,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Steven E. Blankinship, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

HENDERSON, Judge.

{1}     Following a jury trial, Defendant George Bryant was convicted of two counts of
attempted first degree murder with a firearm, contrary to NMSA 1978, Sections 30-2-
1(A)(1) (1994), and 30-28-1 (1963); one count of shooting at or from a motor vehicle
resulting in great bodily harm, a second degree felony, contrary to NMSA 1978, Section
30-3-8(B) (1993); and one count of shooting at or from a motor vehicle resulting in
injury, a third degree felony, contrary to Section 30-3-8(B). Defendant raises six issues
on appeal: (1) the district court erred in vacating the conviction with the greater
sentence following the determination that his convictions would have resulted in double
jeopardy; (2) the district court erred in failing to give the jury a lesser included offense
instruction; (3) the district court erred in denying Defendant’s motion to suppress; (4) the
State failed to present sufficient evidence that Defendant was the shooter; (5) the State
committed a Brady violation when it failed to send gunshot residue (GSR) swabs to the
crime lab for analysis; and (6) the district court erred in denying Defendant’s motion for
a new trial. For the reasons that follow, we reinstate Defendant’s previously vacated
conviction for attempted first degree murder, vacate his conviction for shooting at or
from a motor vehicle resulting in great bodily harm, and remand to the district court for
entry of an amended judgment and sentence in conformity with this opinion. We
perceive no error in the remaining issues raised by Defendant, and therefore, affirm in
those respects.

BACKGROUND

{2}    Defendant knew Anthony Maynez and Cherie Weston (collectively, Victims), for
at least thirteen years before the events at issue. Approximately one week before the
shooting, Defendant was visiting Victims at Mr. Maynez’s father’s house located in La
Luz, New Mexico (the house). During this visit, Defendant made sexually suggestive
comments towards Ms. Weston, which angered Mr. Maynez because although Ms.
Weston and Mr. Maynez were not romantically involved at the time, Ms. Weston is the
mother of his child. A fight ensued between the two men, which was eventually broken
up by Mr. Maynez’s father. Before leaving, Defendant said to Mr. Maynez, “I don’t want
to do this, but I got to kill you” and made a gun-like hand gesture towards him.

{3}     On the night of November 10, 2014, police responded to a shooting in front of the
house. Victims were sitting in Mr. Maynez’s vehicle in front of the house when
Defendant drove by in an Oldsmobile Cutlass and shot into the vehicle multiple times.
Mr. Maynez was shot in his hand, arm, and stomach, and Ms. Weston was shot in the
left arm and a bullet fragment had to be removed from her face. Victims identified
Defendant as the shooter.

{4}     Shortly after the shooting, Defendant was located and stopped by police not far
from the scene of the crime, and he was driving a brown Oldsmobile Cutlass. Defendant
was subsequently charged with and convicted of two counts of attempt to commit first
degree murder with a firearm, one count of shooting at or from a motor vehicle resulting
in great bodily harm, and one count of shooting at or from a motor vehicle resulting in
injury.

{5}    Following his jury trial, Defendant filed a timely motion for a new trial based on
five arguments. At the hearing on his motion, Defendant only presented three
arguments for a new trial: (1) the prosecutor introduced false information stated as
evidence; (2) new evidence; and (3) a new witness. The district court denied
Defendant’s motion for a new trial finding Defendant’s claim of prosecutorial misconduct
to be without merit and that he failed to meet his burdens with regard to his new
evidence and new witness claims.
{6}    Defendant also filed a motion to review for double jeopardy. The district court
denied Defendant’s motion. However, the district court acknowledged in its order
denying Defendant’s motion that he was entitled to raise the double jeopardy violation
issue again at sentencing, which he did. At sentencing, the district court agreed with
Defendant that two out of four of his convictions must be vacated based on double
jeopardy. The court vacated Defendant’s convictions for the attempted first degree
murder of Mr. Maynez (Count 1), and the shooting at or from a motor vehicle resulting in
bodily harm related to Ms. Weston (Count 3) and sentenced him accordingly for a total
of twenty-seven years to run consecutively. This appeal followed.

DISCUSSION

I.    The District Court Vacated the Wrong Conviction

{7}    Defendant contends that the district court vacated the wrong conviction after it
found that Defendant’s convictions for attempted first degree murder and shooting at or
from a motor vehicle resulted in a double jeopardy violation. We agree.

{8}     In New Mexico, merger “is a remedial measure in response to a violation of the
double jeopardy protection against multiple punishments for a single offense.” State v.
Santillanes, 

, 

, 

. “[D]ouble jeopardy
requires that the lesser offense merge into the greater offense such that the conviction
of the lesser offense, not merely the sentence, is vacated.” 

{9}     Defendant was convicted of two counts of attempted first degree murder with a
firearm and two counts of shooting at or from a motor vehicle. At Defendant’s
sentencing hearing, the district court found that Defendant’s convictions for attempted
first degree murder and shooting at or from a motor vehicle resulted in a double
jeopardy violation. Consequently, the district court was required to vacate one of the two
convictions related to each Victim. See 

 At issue here are Defendant’s convictions
related to Mr. Maynez. The district court vacated Defendant’s conviction for attempted
first degree murder of Mr. Maynez, and maintained his conviction for shooting at or from
a motor vehicle resulting in great bodily harm (Count 4).

{10} Defendant’s conviction for attempted first degree murder of Mr. Maynez, a
second degree felony, carried a nine-year basic sentence with a four-year habitual
offender enhancement and an additional one-year enhancement for the use of a firearm
for a total of fourteen years. See § 30-2-1(A)(1); § 30-28-1; see also NMSA 1978, § 31-
18-17(B) (2003); NMSA 1978, § 31-18-16(A) (1993, amended 2022). His conviction for
shooting at or from a motor vehicle resulting in great bodily harm, also a second degree
felony, carried a nine-year basic sentence with a four-year habitual offender
enhancement, totaling thirteen years. See § 30-3-8(B); § 31-18-17(B).

{11} We review the district court’s decision regarding which conviction to vacate for an
abuse of discretion. See State v. Porter, 

, 

(“Where, as here, both offenses result in the same degree of felony, the choice of which
conviction to vacate lies in the sound discretion of the district court.”). However, “even
when we review for an abuse of discretion, our review of the application of the law to the
facts is conducted de novo. Accordingly, we may characterize as an abuse of discretion
a discretionary decision that is premised on a misapprehension of the law.” Harrison v.
Bd. of Regents of Univ. of N.M., 

, 

 (internal
quotation marks and citations omitted).

{12} While our Supreme Court has previously declined to instruct district courts on
which conviction should be vacated when both convictions are the same degree felony,
we have never been presented with the issue faced in this case. See Porter, 2020-
NMSC-020, ¶ 42. However, our Supreme Court has repeatedly held that “where one of
two otherwise valid convictions must be vacated to avoid violation of double jeopardy
protections, we must vacate the conviction carrying the shorter sentence.” State v.
Montoya, 

, 

. Here, we must determine whether the
district court’s decision to take into account potential good time credit in deciding which
sentence is shorter aligns with our precedent. As we explain, the New Mexico
Department of Corrections’ (NMDC) ability to shorten Defendant’s period of confinement
per the Earned Meritorious Deduction Act (EMDA), NMSA 1978, § 33-2-34(A) (2015),
does not change the length of his sentence.

{13} The EMDA governs prisoner eligibility for an award of good-time deductions in
the state prison system. State v. Tafoya, 

, 

, 

; see § 33-2-34. While incarcerated, an inmate may earn meritorious
deductions through active participation in authorized prison programs and upon the
recommendation of a supervisor and approval of the warden. See § 33-2-34(B). These
deductions “decrease the maximum amount of time an inmate must serve in prison
before being eligible for parole or release.” Tafoya, 

. Thus,
although the EMDA may affect a defendant’s time confined in prison, it does not affect
the length of a defendant’s sentence, i.e., the amount of time he or she is being
punished by the state. See State v. Aqui, 

, ¶ 9, 

, 

 (stating “[a d]efendant[’s] claims of entitlement to good time credits therefore
challenge the execution of their sentences rather than the sentences themselves”);
Robinson v. Cox, 

, ¶ 6, 

, 

 (“A release on parole
is an act of clemency or grace resting entirely within the discretion of the parole board.
One who is paroled is not thereby released from custody but is merely permitted to
serve a portion of his sentence outside the walls of the penitentiary, under such
conditions as the board may impose and during the pleasure of the board.”). Thus, it
was a misapprehension of the law for the district court to determine that Defendant’s
conviction for attempted first degree murder resulted in the shorter sentence.

{14} It is evident that the district court engaged in a hypothetical analysis that went
beyond considering the sentence length of each conviction, and also took into account
that one conviction was a serious violent offense, which could affect potential good time
credit awarded by the NMDC toward Defendant’s total time incarcerated. The difference
between the total years Defendant would serve if he earned good time is 85 percent of
thirteen years (approximately eleven years) for shooting at or from a motor vehicle
resulting in great bodily harm and 50 percent of fourteen years (seven years) for
attempted murder. See § 33-2-34(A). The result of this hypothetical calculation
essentially reversed the conviction, which carries the shorter sentence and seemed to
inform the district court’s ultimate decision regarding which conviction to vacate.
However, the computation of good time credit is a discretionary matter that is reserved
for the NMDC, and should not impact the determination of the original sentence. See
Aqui, 

, ¶ 9 (stating that “[t]he computation of good time credits is
exclusively an administrative responsibility, and such deductions have no bearing upon
the validity of the original sentence imposed by the district court”).

{15} Further, it is necessary to ensure consistent sentencing amongst criminal cases.
If one district court chooses to exclusively look at the length of a sentence and another
chooses to determine what a sentence could result in based on a potential computation
of good time, the sentencing of individual defendants across the state would not be
consistent, potentially resulting in some defendants receiving significantly longer
sentences than others with the same convictions.

{16} Therefore, because shooting at or from a motor vehicle resulting in great bodily
harm is the conviction with the shorter sentence, we reinstate Defendant’s conviction for
attempted first degree murder of Mr. Maynez (Count 1), vacate his conviction for
shooting at or from a motor vehicle resulting in great bodily harm (Count 4), and remand
to the district court for resentencing.

II.    The District Court Did Not Err by Failing to Give Jury Instructions on the
       Lesser Included Offense

{17} Defendant argues that the district court erred by failing to give a jury instruction
on aggravated battery as a lesser included offense of attempted first degree murder of
Ms. Weston. Defendant failed to preserve this alleged instructional error for appellate
review because he did not tender any jury instructions at trial to indicate that the charge
of aggravated battery should be considered as a lesser included offense with regard to
the charges related to Ms. Weston. Thus, our review is only for fundamental error. See
State v. Baxendale, 

, 

 (citing State v. Benally, 2001-
NMSC-033, ¶ 12, 

, 

).

{18} However, in cases such as this, our Supreme Court has declined to apply the
doctrine of fundamental error to a defendant’s choice of whether to have the jury
instructed on lesser included offenses, and has “repeatedly . . . held that the defendant
cannot be heard to complain if the [district] court instructed the jury as he [or she]
desired.” State v. Boeglin, 

, ¶ 10, 

, 

; see 

(“[New Mexico courts] consistently have imposed upon the defendant the duty to make
the tactical decision whether or not to seek jury instructions on lesser degrees of [a
crime] supported by the evidence.”).

{19} After the State rested its case, outside of the presence of the jury, the district
court held a sidebar to discuss jury instructions. Defendant requested two jury
instructions, both of which were given to the jury. The State tendered its proposed jury
instructions, and the district court went through each proposed instruction with the
parties. Initially, the State proposed an instruction for aggravated battery with a deadly
weapon as a lesser included offense of attempt to commit first degree murder of Ms.
Weston, but withdrew the instruction without any objection from Defendant. Defendant
did not request any other instructions. Defendant was aware of the potential lesser
included offense instruction of aggravated battery as evidenced by the record, but did
not argue for or tender a proposed instruction for a lesser included offense. Defendant
has failed to prove any violation of a constitutional guarantee resulting from the failure of
the district court to sua sponte give a lesser included offense instruction, and it is not
our place to question Defendant’s strategies at trial. See Boeglin, 

, ¶
15 (“We hold that, consistent with the constitutional guarantees of a fair trial, the
defendant in a first degree murder prosecution may take his chances with the jury by
waiving instructions on lesser included offenses and cannot be heard to complain on
appeal if he has gambled and lost.”); see also State v. Dean, 

, ¶ 10,

, 

 (noting that appellate courts do not question trial tactics or
strategy). For these reasons, we hold that the district court did not err by failing to give
lesser included jury instructions of aggravated battery with regard to Ms. Weston.

III.   The District Court Properly Denied Defendant’s Motion to Suppress

{20} Defendant contends that the officer in this case lacked reasonable suspicion to
conduct a traffic stop and investigatory detention of him on the night of the shooting,
and consequently, all evidence obtained after the stop should have been suppressed.
We disagree and hold that the district court did not err by denying Defendant’s motion to
suppress.

{21} Our review of a district court’s order on a motion to suppress presents “a mixed
question of fact and law.” State v. Leyva, 

, 

, 

. “In reviewing a district court’s ruling denying a motion to suppress, the
appellate courts draw all reasonable inferences in favor of the ruling and defer to the
district court’s findings of fact as long as they are supported by substantial evidence.”
State v. Murry, 

, 

. “[W]e then review de novo the
trial court’s application of law to the facts to determine whether the search or seizure
were reasonable.” Leyva, 

.

{22} “A police officer can initiate an investigatory traffic stop without infringing the
Fourth Amendment [of the United States Constitution,] or Article II, Section 10 [of the
New Mexico Constitution] if the officer has a reasonable suspicion that the law is being
or has been broken.” State v. Martinez, 

, 

 (internal
quotation marks and citation omitted). “A reasonable suspicion is a particularized
suspicion, based on all the circumstances that a particular individual, the one detained,
is breaking, or has broken, the law.” State v. James, 

, 

 (internal quotation marks and citation omitted). “A reasonable suspicion arises if the
officer is aware of specific articulable facts, together with rational inferences from those
facts, that, when judged objectively, would lead a reasonable person to believe criminal
activity occurred or was occurring.” 

 (internal quotation marks and citation omitted).

{23} The district court’s findings of fact were based on Detective Hunter’s testimony at
the hearing on Defendant’s motion to suppress. Detective Hunter testified that on
November 10, 2014, he responded to a shooting at the house in La Luz, New Mexico
shortly after 11:00 p.m. Upon arrival, he learned the identities of Victims from other
officers. He also learned that Victims identified Defendant as the shooter. Detective
Hunter received a description of the vehicle that the shots were fired from an
Oldsmobile Cutlass, and was aware that Defendant owned a vehicle similar to this
description. He was familiar with Defendant in a criminal context prior to this incident.
After leaving the scene of the shooting, Detective Hunter drove by Defendant’s
residence and discovered he was not there. Detective Hunter then drove to a place
where he thought Defendant might be: the residence of Melissa Granados, 1 a known
associate of Defendant. Ms. Granados’s residence was less than ten miles from the
house. When he arrived at Ms. Granados’s residence, he observed a male standing by
the side door who resembled Defendant. While driving by, Detective Hunter heard the
male say, “See the cops are driving by right now.” Detective Hunter then set up
surveillance near Ms. Granados’s residence, and within thirty minutes he heard and saw
a brown Oldsmobile Cutlass pull away from the residence. He recognized this vehicle
as one that belonged to Defendant. While following the vehicle, Detective Hunter ran its
license plate and learned that it belonged to Defendant’s father. After confirming the
owner of the vehicle, Detective Hunter decided to initiate a traffic stop and identified
Defendant as the driver. From the time of the shooting to when Detective Hunter
initiated the traffic stop of Defendant’s vehicle approximately thirty to forty minutes had
elapsed.

{24} Taken as a whole, Detective Hunter’s testimony clearly demonstrates that he
believed a crime had occurred. See Martinez, 

. Therefore, we
cannot conclude that the district court erred in denying Defendant’s motion to suppress.

IV.    The State Presented Sufficient Evidence That Defendant Was the Shooter

{25} Defendant argues that the evidence presented at trial was insufficient to prove
that he was the shooter. He claims that the eyewitness identification “lack[ed] reliability”
and there were “gaps in the State’s evidence.” We are not persuaded, and conclude
that the evidence that Defendant was the shooter is sufficient.

{26} When reviewing a jury’s verdict for sufficient evidence, we determine whether
substantial evidence, either direct or circumstantial, exists to support every element
essential to a conviction beyond a reasonable doubt. State v. Garcia, 

, 

, 

. “Evidence is viewed in the light most favorable to the
guilty verdict, indulging all reasonable inferences and resolving all conflicts in the
evidence in favor of the verdict.” 

 (internal quotation marks and citation omitted). We

1For purposes of the record, Ms. Granados, formerly known as Melissa Best, was listed on the witness
list and occasionally referred to as Ms. Best throughout this case.
will not “second-guess[] the jury’s decision concerning the credibility of witnesses[ by]
reweighing the evidence, or substituting [our] judgment for that of the jury.” 

 “So long
as a rational jury could have found beyond a reasonable doubt the essential facts
required for a conviction, we will not upset a jury’s conclusions.” 

 (internal quotation
marks and citation omitted).

{27} Mr. Maynez offered the following testimony at trial. On the night of the shooting,
around 10:00 p.m., he and Ms. Weston were sitting in his vehicle in front of the house.
Approximately thirty seconds after arriving at the house in his car, another vehicle that
Mr. Maynez testified was Defendant’s vehicle turned onto Holloman and began driving
towards them. At this point, Mr. Maynez started his vehicle intending to drive away. As
the other vehicle continued slowly towards Victims, Mr. Maynez slouched down in an
attempt to hide. When the other vehicle had pulled up next to Mr. Maynez’s car, Ms.
Weston said, “Oh no, there’s [Defendant],” and Mr. Maynez was able to see the driver
was, in fact, Defendant. That is when Defendant started shooting into his car. Mr.
Maynez testified that he recognized Defendant’s “baldhead” and that he was “100
percent positive” that the driver who shot at him was Defendant because he “saw him.”
Mr. Maynez heard seven to nine shots. He was shot three times, once in the hand, once
in the arm, and once in the stomach.

{28} Ms. Weston testified that while she only saw the silhouette of a bald man driving
the vehicle as it approached, she recognized it as Defendant’s vehicle that she had
seen him drive many times over the course of the thirteen years of knowing him. Ms.
Weston also testified that before the night of the shooting, Defendant had asked her to
hold some guns for him, and that she had seen Defendant with a 9 mm firearm when he
gave it to her for safekeeping.

{29} Ms. Granados testified that on the night of the shooting, Defendant showed up at
her residence unannounced shortly after 10:00 p.m., and told her that “he had shot at
two people.” At the time, Ms. Granados thought this was a joke because she was not
aware of what had occurred at the house earlier that night. However, a few days after
the shooting, Defendant called Ms. Granados from jail, seeking information about what
she had told the police, insinuated she had told police he was the shooter and called
her a “rat.”

{30} Detective Hunter testified that when he stopped Defendant on the night of the
shooting, he shined his flashlight into Defendant’s vehicle and saw two shell casings.
These shell casings were later determined to belong to a 9 mm firearm.

{31} Patrol Sergeant Slater of the Otero County Sheriff’s Department testified that he
responded to reports of a shooting in La Luz on November 10, 2014, and it was his duty
to collect and photograph evidence at the crime scene. At the crime scene, Sergeant
Slater documented three 9 mm shell casings on the ground in the street in front of the
house.
{32} The State’s expert witness, Mr. Streine, a Forensic Scientist at the New Mexico
Department of Public Safety’s Forensic Lab, testified that the lab accepted five shell
casings for ballistics testing. The State requested that five shell casings be compared to
each other and a firearm to determine if they were shot from the same firearm. Mr.
Streine compared one 9 mm shell casing found at the scene of the shooting and four 9
mm shell casings found in the vehicle that Defendant was driving at the time he was
arrested. After examining the shell casings, Mr. Streine determined that all five casings
were fired from the same firearm.

{33} This evidence more than adequately establishes Defendant’s identity as the
shooter. Defendant’s contention that his convictions are not supported by sufficient
evidence because the eyewitness testimony is “unreliable” is unavailing. The jury was
free to accept or reject the eyewitness accounts. See State v. McAfee, 1967-NMSC-
139, ¶ 8, 

, 

 (“It was for the jury to determine the weight to be
given [to] the testimony, and determine the credibility of the witnesses.” (citations
omitted)). We are therefore satisfied that sufficient evidence was presented to allow the
jury to conclude that Defendant was the shooter.

V.    The State Did Not Commit a Brady Violation

{34} Defendant argues that the State committed a Brady violation by failing to send
GSR swabs collected from Defendant’s person and vehicle after the shooting to the
forensic lab for testing. See Brady v. Maryland, 

 (1963) (requiring the
prosecution to disclose evidence in its possession that could exculpate a criminal
defendant); see generally Case v. Hatch, 

, 

, 

 (discussing the standards applicable to a Brady claim in New Mexico).
Defendant maintains that had the GSR swabs been tested, the results would have
shown that he was not the shooter, and the State’s failure to share these results
resulted in the suppression of material evidence. We disagree.

{35} Defendant argues that this issue was preserved in his motion for a new trial.
However, New Mexico law provides that a motion for a new trial is not sufficient to
preserve an issue that was not otherwise raised during trial proceedings. See State v.
Pacheco, 

, 

, 

 (determining that
because the defendant raised his claim of error for the first time in a motion for a new
trial, the claim was not properly preserved for appellate review); see also Rule 12-
321(A) NMRA (“To preserve an issue for review, it must appear that a ruling or decision
by the trial court was fairly invoked.”). Because Defendant failed to make a timely
objection in the district court, the issue is not preserved for our consideration absent a
showing of fundamental error. See Rule 12-321(B)(2)(c) (providing an exception to the
preservation rule for questions involving fundamental error); see also State v.
Stevenson, 

, 

 (holding that improperly preserved
Brady issues should be analyzed for fundamental error). We hold that no fundamental
error occurred.
{36} To establish a Brady violation a defendant must show: “(1) the prosecution
suppressed evidence; (2) the evidence was favorable to the accused; and (3) the
evidence was material to the defense.” Stevenson, 

 (internal
quotation marks and citation omitted). Defendant’s argument fails to meet the first prong
of the test—whether the prosecution suppressed evidence—because he was aware of
the GSR swabs existence as he listed them in his disclosure of evidence filed before
trial. The failure to satisfy the first Brady requirement alone justifies our conclusion that
no fundamental error occurred. See Stevenson, 

. As such, we
hold that the State did not commit a Brady violation by failing to send GSR swabs to the
lab for testing.

VI.    The District Court Did Not Abuse Its Discretion by Denying Defendant’s
       Motion for a New Trial

{37} Finally, Defendant challenges the district court’s denial of his motion for a new
trial. Defendant claims that the district court should have granted his motion based on
the following three grounds: (1) the State discussed facts not in evidence during its
closing; (2) newly discovered evidence; and (3) the discovery of a new witness who
would have testified favorably for the defense. We are not persuaded.

A.     Facts Not in Evidence

{38} We hold that the district court exercised sound discretion in denying Defendant’s
motion for a new trial. Defendant first contends that the State made an incorrect
statement to the jury during its closing argument. However, in his briefing, Defendant
does not identify or cite to the statement made by the State that was incorrect. See Rule
12-318(A)(4) NMRA (“The brief in chief of the appellant . . . shall contain . . . an
argument . . . with citations to authorities, record proper, transcripts of proceedings, or
exhibits relied on.”). Therefore, we are unable to meaningfully review Defendant’s
contention that the State made an improper statement during closing and decline to
address this matter further. See Elane Photography, LLC v. Willock, 

, 

 (“We will not review unclear arguments, or guess at what a party’s
arguments might be.” (alteration, internal quotation marks, and citation omitted)).

B.     Newly Discovered Evidence and Witness

{39} A motion for new trial based on newly discovered evidence may be made within
two years of final judgment. Rule 5-614(C) NMRA. Generally, “[a]n appellate court will
not disturb the district court’s exercise of discretion in denying or granting a motion for a
new trial unless there is a manifest abuse of discretion.” State v. Jackson, 2018-NMCA-
066, ¶ 32, 

 (alteration, internal quotation marks, and citation omitted). “An
abuse of discretion occurs when the ruling is clearly against the logic and effect of the
facts and circumstances of the case.” State v. Lymon, 

, 

 (internal quotation marks and citation omitted).
{40} A motion for new trial on the grounds of newly discovered evidence is only to be
granted when the newly discovered evidence meets six requirements:

       1) it will probably change the result if a new trial is granted; 2) it must have
       been discovered since the trial; 3) it could not have been discovered
       before the trial by the exercise of due diligence; 4) it must be material; 5) it
       must not be merely cumulative; and 6) it must not be merely impeaching
       or contradictory.

State v. Garcia, 

, 

, 

 (internal quotation
marks and citation omitted). Defendant’s contention that the district court should have
granted his motion for a new trial based on newly discovered evidence fails because the
additional shell casings and witness upon which Defendant bases his argument were
known prior to his trial. Therefore, we are unpersuaded that the district court erred in
denying Defendant’s motion for a new trial.

CONCLUSION

{41} We vacate Defendant’s conviction for shooting at or from a motor vehicle
resulting in great bodily harm to Mr. Maynez (Count 4). We reinstate Defendant’s
previously vacated conviction for attempted first degree murder (Count 1) of Mr.
Maynez. We reject Defendant’s remaining claims of error and remand to the district
court for entry of an amended judgment and sentence in conformity with this opinion.

{42}   IT IS SO ORDERED.

SHAMMARA H. HENDERSON, Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge

GERALD E. BACA, Judge