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Factual and Procedural Background

Defendant Marco Mata y Rivera appealed convictions for (1) unlawful carrying of a firearm in a licensed liquor establishment (NMSA 1978, § 30-7-3) and (2) negligent use of a deadly weapon (NMSA 1978, § 30-7-4). The convictions arose from events on March 16, 1991, at the Hiway Package Lounge in Carlsbad, New Mexico. Officer Holguin responded to a reported robbery, observed a vehicle in the lounge parking lot strike another car, and saw Defendant in the left rear seat holding a small-caliber handgun that Holguin perceived to be pointed toward the driver. Defendant did not immediately comply with commands to exit; when he did, the gun was not on his person. A subsequent search of a brown bag found inside the car revealed a handgun, ammunition, a magazine, and a sales receipt bearing Defendant's name. Two passengers who had been with Defendant testified the bag and gun did not belong to them but could not positively identify the bag.

The Court of Appeals (Bivins, J.) considered multiple issues raised by Defendant on appeal and affirmed the convictions. Certiorari to the New Mexico Supreme Court was denied March 2, 1993.

Legal Issues Presented

  1. Whether the negligent use of a deadly weapon statute, NMSA 1978, § 30-7-4, violates Defendant's right to bear arms under the New Mexico Constitution.
  2. Whether Section 30-7-4 is unconstitutionally overbroad and vague.
  3. Whether the trial court erred in admitting a sales receipt concerning Defendant's gun.
  4. Whether the trial court erred in admitting evidence concerning a liquor license.
  5. Whether the evidence was sufficient to support Defendant's convictions.
  6. Whether the jury was adequately instructed.
  7. Whether Defendant was denied due process and his right to appeal because of an incomplete record.
  8. Whether cumulative error required reversal.

Arguments of the Parties

Defendant-Appellant's Arguments

  • Section 30-7-4, as applied to him, infringes his state constitutional right to bear arms.
  • Section 30-7-4 is unconstitutionally vague and overbroad, particularly because terms like "carrying" (when read with § 30-7-1) and "use" lack precise definition and "under the influence" is not defined.
  • The sales receipt found in the bag was hearsay and unauthenticated and violated his confrontation rights because it tended to show he purchased the gun the day before the incident.
  • Admission of evidence that the lounge was licensed was improper because the State did not provide advance information regarding that evidence, impairing his ability to defend the licensing element of § 30-7-3.
  • The evidence was insufficient to prove elements of negligent use and unlawful carrying in a licensed liquor establishment.
  • The trial court's jury instructions were inadequate; he sought certain modifications and additional instructions (including defining negligence, limiting consideration of odor of alcohol, and distinguishing parking lot possession) that were refused.
  • The appellate record is incomplete (missing portion of discussion concerning jury instructions), denying due process and the right to appeal.
  • Cumulative errors entitle him to relief.

State-Appellee's Arguments

  • The statute (§ 30-7-4) lawfully restricts carrying a firearm while under the influence and does not impermissibly infringe the right to bear arms.
  • The rationale used in State v. Dees (upholding § 30-7-3) applies; the State may exercise its police power to prohibit firearm possession by intoxicated persons because of public safety concerns.
  • The sales receipt was not hearsay because it was offered to show what was found in the bag and to show Defendant's possession and control of the bag's contents, not to prove the truth of the receipt's contents; it was also adequately authenticated by Officer Holguin's testimony.
  • The State satisfied its burden to prove the lounge was licensed through Officer Holguin's testimony (he observed a license and recorded its number and contacted ABC); absence of the physical license did not defeat a prima facie showing; a jury could infer the license was valid.
  • Substantial evidence supported both convictions when the evidence is viewed most favorably to the State (sufficient proof Defendant carried a firearm while under the influence and that the lounge was licensed and the firearm was carried in the lounge).
  • The trial court properly refused requested instruction modifications because uniform instructions are required, the requested instructions were unnecessary or not supported by the evidence, and the instructions given fairly presented the law.
  • The incomplete portion of the record did not prejudice Defendant; the missing material related only to instructions, many of which are in the record, so no due process violation is demonstrated.
  • Because no errors are found, there is no cumulative error warranting reversal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
In re Adoption of Doe, 100 N.M. 764, 676 P.2d 1329 (1984) Permits the court to decline consideration of an issue unsupported by authority cited by appellant. The court noted Defendant cited no authority for his right-to-bear-arms contention and stated it need not consider the unsupported contention, though it addressed it nonetheless.
State v. Dees, 100 N.M. 252, 669 P.2d 261 (Ct.App. 1983) Holds that the right to bear arms is not absolute; § 30-7-3 is a valid regulation to protect patrons of licensed liquor establishments. The court applied Dees' rationale to uphold § 30-7-4 as a permissible regulation circumscribing the right where public safety is implicated.
United States v. Romero, 484 F.2d 1324 (10th Cir. 1973) Quoted for the proposition that the right to bear arms can be circumscribed by conditions under which it is asserted. Used as supporting authority for the principle applied in Dees and for the court's view that rights are not absolute.
State v. Soto, 95 N.M. 81, 619 P.2d 185 (1980) Interpretation of legislative purpose of § 30-7-3: protect innocent patrons of licensed liquor establishments. Referenced (through Dees) to show legislative purpose underlying firearm restrictions in liquor establishments and to support upholding related statutes.
People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979) Police power supports statutes reasonably related to health, welfare, and safety; Colorado statute prohibiting firearm possession while under the influence did not impermissibly restrict right to bear arms. The court relied on Garcia to support the proposition that prohibiting firearm possession by intoxicated persons is a permissible exercise of police power and not an unconstitutional restriction.
State v. Casteneda, 97 N.M. 670, 642 P.2d 1129 (Ct.App. 1982) Constitutionality of a statute is generally subject to challenge only by someone showing unconstitutional application to him. Applied to conclude Defendant had to show the statute was unconstitutionally applied to him; the evidence indicated he posed a danger, undermining such a challenge.
State v. James M., 111 N.M. 473, 806 P.2d 1063 (Ct.App. 1990) When challenging vagueness, statute is presumed constitutional; interpret statute in entirety and give words ordinary meaning; statute must provide adequate warning to a person of ordinary intelligence. Used as the framework to evaluate Defendant's vagueness challenge to § 30-7-4 and to support giving terms like "accessible" and "use" ordinary meanings.
State v. Brecheisen, 101 N.M. 38, 677 P.2d 1074 (Ct.App. 1984) Standing to challenge overbreadth requires showing one's own conduct could not be regulated by a statute drawn with requisite specificity. The court applied this standing principle to conclude Defendant could not show overbreadth because his conduct (being intoxicated with a firearm accessible) could be regulated.
Dombrowski v. Pfister, 380 U.S. 479 (1965) Quoted for the standard used in overbreadth-standing analysis. Quoted (via Brecheisen) to explain the standing requirement for an overbreadth challenge; used to support refusal of Defendant's overbreadth claim.
State v. Worley, 100 N.M. 720, 676 P.2d 247 (1984) Appellate review: evidentiary rulings are affirmed absent a clear abuse of discretion. Applied in reviewing admission of the sales receipt; the court found no abuse and affirmed admission.
State v. Wyman, 96 N.M. 558, 632 P.2d 1196 (Ct.App. 1981) Evidence admissible for one purpose is not to be excluded because it is inadmissible for another purpose. Applied to justify admission of the sales receipt for the limited purposes of showing what was in the bag and tending to prove Defendant's possession/control of the bag.
State v. Gonzales, 113 N.M. 221, 824 P.2d 1023 (1992) Failure to request a limiting instruction results in waiver of the error. Applied to note Defendant did not request a limiting instruction regarding the receipt, resulting in waiver of any objection to secondary inferences the jury might draw.
State v. Sutphin, 107 N.M. 126, 753 P.2d 1314 (1988) Standard for sufficiency of the evidence: substantial evidence viewed in the light most favorable to the State, resolving conflicts and indulging inferences in favor of the verdict. Used as the standard for reviewing sufficiency of evidence for both convictions; court concluded substantial evidence supported the verdicts.
State v. Copeland, 105 N.M. 27, 727 P.2d 1342 (Ct.App. 1986) Interpretation of "under the influence" in DWI context: ability to handle a vehicle lessened to the slightest degree. Used as guidance for what "under the influence" can mean in the firearm context; officer testimony provided indicators of impairment consistent with that meaning.
State v. Paul, 82 N.M. 619, 485 P.2d 375 (Ct.App. 1971) Circumstantial evidence connecting a defendant to a crime may properly serve as the basis for an inference essential to establishing an offense. Applied to support the inference that the bag Defendant carried into the lounge was the same bag found in the car containing the handgun.
State v. Lucero, 110 N.M. 50, 791 P.2d 804 (Ct.App. 1990) Instructions are sufficient if, considered as a whole, they fairly present the issues and applicable law. Applied to find that the instructions given (including Instruction No. 5) adequately presented law concerning parking-lot possession and other matters.
Lopez v. Maes, 81 N.M. 693, 472 P.2d 658 (Ct.App. 1970) Authority that odor of alcohol alone is not necessarily sufficient basis for finding intoxication. The court acknowledged Lopez but noted odor was not the only indicator here; other objective indicators supported the jury's finding.
State v. Ontiveros, 111 N.M. 90, 801 P.2d 672 (Ct.App. 1990) A party is entitled to an instruction on his theory only if there is evidence to support it. Applied to reject Defendant's requested instruction that misrepresented the evidence (e.g., that odor alone was insufficient), because the record contained other indicia of impairment.
State v. Kraul, 90 N.M. 314, 563 P.2d 108 (Ct.App. 1977) An instruction that is confusing or misrepresents evidence may be refused. Applied to support refusal of Defendant's requested instruction which would have been confusing or misrepresentative of the evidence.
State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967) Authority cited by Defendant regarding proof of licensing evidence. The court noted Defendant cited Franklin but stated it need not consider the argument; it nonetheless answered the claim and found the State's evidence sufficient.
State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct.App. 1985) Authority cited by Defendant regarding advance disclosure or proof of licensing. The court noted the citation but declined to find merit in Defendant's complaint about the licensing evidence and found a prima facie case was presented.
State v. Moore, 87 N.M. 412, 534 P.2d 1124 (Ct.App. 1975) Cases discussing prejudice from an incomplete record and the inability to review contentions without adequate record. The court distinguished Moore: here the missing portion related only to jury instructions, many instructions and objections were in the record, and Defendant did not demonstrate prejudice from the incomplete portion.
Manlove v. Sullivan, 108 N.M. 471, 775 P.2d 237 (1989) Referenced in relation to claim of denial of right to appeal due to incomplete record. Cited as related authority; the court found Manlove did not control because Defendant had not shown prejudice from the missing portion.
State v. Larson, 107 N.M. 85, 752 P.2d 1101 (Ct.App. 1988) Cumulative error doctrine: no cumulative error absent individual errors. Applied to conclude that, because no individual errors were found, there was no cumulative error warranting reversal.
Fulwiler v. Traders General Ins. Co., 59 N.M. 366, 285 P.2d 140 (1955) Presumption that public officers perform their duties in a regular and lawful manner. Applied to support the inference that the liquor license observed in March was valid and had not expired, bolstering the licensing element.
Herrera v. Zia Land Co., 51 N.M. 390, 185 P.2d 975 (1947) Presumption that public officials perform duties (regular meeting presumption example). Used with other authorities to support presumption that licensing authorities had performed their duties, supporting the license inference.
State ex rel. Delgado v. Romero, 17 N.M. 81, 124 P. 649 (1912) Presumption that each department of government will do its duty. Invoked to support the inference that the Alcoholic Beverage Control agency had done its duty in licensing the premises.
People v. Goodenough, 391 N.Y.S.2d 940 (Just. Ct. 1977) Presumption that public officials performed duties (example: notice of suspension transmitted). Included among authorities to buttress the presumption that the license observed was valid.
City of Houston v. Moody, 572 S.W.2d 13 (Tex. Ct. App. 1978) Presumption that a public official performs duties in a regular, lawful manner. Used as another supporting example for the presumption applied to the licensing evidence.

Court's Reasoning and Analysis

The court addressed each issue in sequence, applying established standards and the facts shown at trial.

1) Right to bear arms challenge: The court began by noting Defendant cited no authority for his constitutional claim but addressed the argument on the merits. It relied on State v. Dees and related authority to state that the state constitutional right to bear arms is not absolute and may be regulated under the state's police power when reasonably related to public health, welfare, and safety. The court found possession of firearms by intoxicated persons presents a clear public danger and that § 30-7-4(A)(2) (prohibiting carrying a firearm while under the influence) is a permissible regulation. Because evidence indicated Defendant posed a potential danger (officer observed the gun pointed toward another and evidence suggested intoxication), the conviction did not impermissibly infringe the right to bear arms.

2) Vagueness and overbreadth: Applying the presumption of constitutionality for vagueness challenges and rules from State v. James M., the court construed § 30-7-4 in context with § 30-7-1's definition of "carrying" (being armed by having a weapon on the person or in close proximity so it is readily accessible for use). The court gave "accessible" and "use" their ordinary meanings (citing dictionary definitions in the opinion) and concluded a person of ordinary intelligence would have fair warning: a firearm that is "readily accessible for use" while under the influence is prohibited. The court rejected the claim that "under the influence" is purely subjective by noting objective indicators of impairment (odor, bloodshot eyes, speech patterns) identified by the officer. On overbreadth, the court applied standing principles from Brecheisen/Dombrowski and concluded Defendant could not show his conduct could not be regulated by a more narrowly drawn statute; moreover, because intoxicated persons have no constitutional right to carry firearms, § 30-7-4(A)(2) does not prohibit legitimate acts.

3) Sales receipt: The court reviewed admissibility for abuse of discretion (Worley). It determined the receipt was not hearsay because it was offered to show what was found in the bag and to tend to prove Defendant's possession and control of the bag's contents, not for the truth of the receipt's factual assertions. The court noted that evidence admissible for one purpose should not be excluded because it may suggest other inferences (Wyman). The court also held the receipt was sufficiently authenticated by Officer Holguin's testimony under SCRA 11-901(B)(1), and that Defendant's failure to request a limiting instruction waived any error in how the jury might use the receipt.

4) Liquor license evidence: The court found the State made a prima facie showing the lounge was licensed through Holguin's testimony (he had been in the lounge, saw the license on the wall the next day, recorded the license number, and contacted ABC). The court concluded the absence of the physical license did not defeat the showing. It relied on statutes governing license expirations and a presumption that public officials perform their duties (citing multiple authorities) to allow a jury inference that the license was valid at the time of the incident. Because Defendant presented no evidence to rebut that inference, the licensing element was supported.

5) Sufficiency of the evidence: Applying the Sutphin standard, the court evaluated whether substantial evidence supported each element beyond a reasonable doubt. For negligent use (§ 30-7-4(A)(2)), Holguin's testimony that he saw Defendant carrying a handgun and objective indicators of intoxication provided sufficient evidence. For unlawful carrying in a licensed lounge (§ 30-7-3), the combination of Holguin's testimony about the license, witness testimony that Defendant had carried a bag into the lounge, and the later discovery of a bag containing a handgun supported inferences tying Defendant to the firearm and the licensed premises. The court found substantial evidence supported both convictions.

6) Jury instructions: The court reviewed requested and refused instructions. It held the trial court properly refused to modify uniform instructions (SCRA 14-703) by adding language ("negligently") because the statutory definition made such addition unnecessary and the offense was negligence per se. Requested definitions or limiting instructions were refused where the evidence did not support them or where the instruction would have been confusing; the court concluded the instructions as a whole fairly presented the issues and law.

7) Incomplete record: The court recognized a portion of the discussion about jury instructions was missing. It distinguished this case from Moore (complete absence of transcript) because requested instructions and objections were in the record and the court could review instructions against the trial testimony. Because Defendant did not demonstrate prejudice from the missing portion, there was no deprivation of due process or appellate rights.

8) Cumulative error: Finding no individual errors that warranted reversal, the court found no cumulative error requiring relief.

Holding and Implications

Holding: The Court of Appeals affirmed Defendant's convictions for negligent use of a deadly weapon (NMSA 1978, § 30-7-4) and unlawful carrying of a firearm in a licensed liquor establishment (NMSA 1978, § 30-7-3).

Implications: The direct effect is that Defendant's convictions and sentences were upheld. The court applied established precedent to conclude that statutes prohibiting firearm possession by intoxicated persons and in licensed liquor establishments are valid exercises of the state's police power, that the challenged statute was neither unconstitutionally vague nor overbroad as applied, and that evidentiary and instructional rulings did not require reversal. The opinion does not announce a novel rule of law beyond applying existing authority to the facts of this case.

STATE OF NEW MEXICO, PLAINTIFF-APPELLEE v. MARCO MATA Y RIVERA, DEFENDANT-APPELLANT.

OPINION

BIVINS, Judge.

Defendant appeals his convictions for unlawful carrying of a firearm in a licensed liquor establishment and negligent use of a deadly weapon. He raises the following issues: (1) whether the negligent use of a deadly weapon statute, NMSA 1978, § 30-7-4 (Repl.Pamp. 1984), violates his right to bear arms under the New Mexico Constitution; (2) whether Section 30-7-4 is unconstitutionally overbroad and vague; (3) whether the trial court erred in admitting a sales receipt concerning Defendant's gun; (4) whether the trial court erred in admitting evidence concerning a liquor license; (5) the sufficiency of the evidence supporting Defendant's convictions; (6) whether the jury was adequately instructed; (7) whether Defendant was denied due process and his right to appeal because of an incomplete record; and (8) cumulative error. Defendant has expressly abandoned two other issues raised in a motion to amend the docketing statement filed while this case was assigned to the summary calendar. We affirm.

FACTS

In the early morning hours of March 16, 1991, Officer Holguin was dispatched to the Hiway Package Lounge in Carlsbad to investigate a reported robbery. Holguin determined that no robbery had occurred. While at the bar, Holguin observed a car in which Defendant was a passenger strike another car in the parking lot. Holguin approached the car to investigate. He shined a flashlight in the car, and saw Defendant, seated in the left rear seat, holding a small caliber handgun. Officer Holguin yelled "gun" to alert other officers at the scene. Holguin said the gun was pointed toward the driver of the car, Arturo Rueda. Mary Lou Amalla, Rueda's girl-friend, was also a passenger in the car.

Officer Holguin ordered the occupants of the car to exit with their hands up. Mr. Rueda and Ms. Amalla complied almost immediately; Defendant did not. Defendant finally exited the car after several minutes. During the time Holguin was ordering Defendant to put his hands up, Defendant kept them down and kept "shuffling" them. Defendant did not have the gun when he got out of the car.

After the occupants exited the car, Holguin looked inside. He found a brown bag containing, among other things, a handgun, a box of ammunition, a magazine for the gun, and a sales slip for the gun with Defendant's name on it. The gun and its magazine were in separate compartments of the bag. Both Mr. Rueda and Ms. Amalla testified that Defendant had a bag with him when they met him earlier outside the bar, and that the bag and gun found in the car did not belong to them. Ms. Amalla stated that Defendant took the bag inside and put it on the floor beside him. Neither Mr. Rueda nor Ms. Amalla could identify the bag in the car as Defendant's, and neither saw a gun in the bag, bar, or car.

1. ALLEGED INFRINGEMENT OF DEFENDANT'S RIGHT TO BEAR ARMS BY CONVICTION UNDER SECTION 30-7-4

Defendant contends that, under the facts of this case, his conviction for negligent use of a deadly weapon violates his right to bear arms under the state constitution. See N.M. Const. art. II, § 6 (Repl.Pamp. 1992). The State answers that the statute lawfully restricts Defendant's carrying a firearm while under the influence of alcohol.

Initially, we note that Defendant has not cited any authority supporting his contention. Thus, we need not consider it. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). Nevertheless, we address Defendant's argument and find it to be without merit. The right to bear arms under the state constitution is not absolute, and a defendant's right to bear arms is circumscribed by the conditions under which he or she seeks to assert the right. State v. Dees, 100 N.M. 252, 254, 669 P.2d 261, 263 (Ct.App. 1983) (quoting United States v. Romero, 484 F.2d 1324, 1327 (10th Cir. 1973)). In Dees, we entertained a similar challenge to NMSA 1978, Section 30-7-3 (Repl.Pamp. 1984), which prohibits the unlawful carrying of a firearm in a licensed liquor establishment. We held that the legislative purpose of Section 30-7-3 was to "`protect innocent patrons of businesses held out to the public as licensed liquor establishments.'" Id. at 255, 669 P.2d at 264 ( quoting State v. Soto, 95 N.M. 81, 82, 619 P.2d 185, 186 (1980)). We upheld Section 30-7-3 as a valid regulation of the right to bear arms.

We agree with the State that the rationale of Dees is applicable to this case. "An act is within the state's police power if it is reasonably related to the public health, welfare, and safety." People v. Garcia, 197 Colo. 550, 595 P.2d 228, 230 (1979) (en banc) (Colorado statute prohibiting possession of a firearm while under the influence of intoxicating liquor did not impermissibly restrict the defendant's right to bear arms and, thus, was not overbroad). The State permissibly exercises its police power by prohibiting the possession of firearms by persons under the influence of alcohol or drugs. Id. Possession of firearms by intoxicated persons presents a clear danger to the public. The state constitution does not support a right to engage in this type of behavior. See id.; Dees, 100 N.M. at 255, 669 P.2d at 264.

The constitutionality of a statute is generally subject to challenge only by someone who demonstrates the unconstitutional application of the statute to him. State v. Casteneda, 97 N.M. 670, 678, 642 P.2d 1129, 1137 (Ct.App. 1982). Here, the evidence indicated that Defendant was a potential danger to the public. There was evidence that Defendant was intoxicated. Officer Holguin saw Defendant pointing the gun at Mr. Rueda. Defendant appeared to be loading the gun. We conclude that Defendant's constitutional right to bear arms was not impermissibly infringed by his conviction under Section 30-7-4.

2. ALLEGED UNCONSTITUTIONAL VAGUENESS AND OVERBREADTH OF SECTION 30-7-4

Defendant next contends that Section 30-7-4 is unconstitutionally vague and overbroad. Specifically, he argues that Section 30-7-4, when read with NMSA 1978, Section 30-7-1 (Repl.Pamp. 1984), does not give fair notice of what conduct is prohibited. We disagree.

If a defendant challenges a statute as vague, the reviewing court presumes the statute is constitutional. State v. James M., 111 N.M. 473, 477, 806 P.2d 1063, 1067 (Ct.App. 1990), cert. denied, 111 N.M. 529, 807 P.2d 227 (1991). We consider the statute in its entirety, giving words their ordinary meaning unless a contrary intent is indicated. Id. "To satisfy the constitutional requirements of due process, the statute must provide adequate warning to a person of ordinary intelligence that his [or her] conduct is prohibited." Id.

Section 30-7-4(A)(2) defines negligent use of a deadly weapon as "carrying a firearm while under the influence of an intoxicant or narcotic." While "carrying a firearm" is not defined in Section 30-7-4, Section 30-7-1 defines "carrying a deadly weapon" as "being armed with a deadly weapon by having it on the person, or in close proximity thereto, so that the weapon is readily accessible for use." (Emphasis added.) The definition of "deadly weapon" includes unloaded firearms. NMSA 1978, § 30-1-12(B) (Repl.Pamp. 1984). We understand Defendant to argue that the term "use" is not defined, thereby rendering the statute vague because persons can be convicted without any showing that the firearm was used or intended to be used. He further argues that the statute does not provide clear guidelines for law enforcement officers because "under the influence" is not defined. Thus, the statute requires a subjective determination by the officer, giving rise to the possibility of uneven enforcement.

We conclude that Section 30-7-4(A)(2) is not unconstitutionally vague. The terms of the statute give fair warning of the prohibited conduct. A person may not have a deadly weapon "readily accessible for use" while under the influence of intoxicants or narcotics. We give the terms "accessible" and "use" their ordinary meanings. See James M., 111 N.M. at 477, 806 P.2d at 1067. "Accessible" means "capable of being used." Webster's Third New International Dictionary 11 (1971). "Use" means "to put into action or service." Id. at 2523. A person of ordinary intelligence would understand what conduct is prohibited by the statute: having a firearm nearby, readily capable of being put into action or service, while under the influence of alcohol. The statute plainly does not require that the intoxicated person actually use or intend to use the firearm.

Further, an officer's determination that a person is "under the influence" is not entirely subjective. Officer Holguin gave several examples of objective indicators of impairment: odor of alcohol, bloodshot eyes, altered speech patterns, etc.

Defendant also contends the statute is overbroad, presumably based on his argument that his possession of the gun was protected under our state constitution. Generally, to have standing to challenge a statute as overbroad, a defendant must show that "`his own conduct could not be regulated by a statute drawn with the requisite [narrow] specificity.'" State v. Brecheisen, 101 N.M. 38, 43, 677 P.2d 1074, 1079 (Ct.App.), cert. denied, 101 N.M. 11, 677 P.2d 624 (1984) (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965)).

Defendant cannot make this showing. As stated in the previous section, Defendant's conduct was dangerous. As such, it could be regulated even by a more narrowly drawn statute than the one at issue here.

Even if Defendant had standing, we do not agree with his overbreadth argument. The key factor in overbreadth analysis is the prohibition of legitimate acts. Garcia, 595 P.2d at 230. There is no constitutional right of intoxicated persons to carry firearms. Id. Thus, Section 30-7-4(A)(2), by prohibiting such conduct, does not prohibit legitimate acts and is not overbroad.

3. THE SALES RECEIPT

Officer Holguin found a sales receipt for the gun indicating that Defendant had purchased it at Michael Lee's Trading Company in Carlsbad on March 15, 1991. Defendant objected to admission of the receipt on the grounds it was hearsay and unauthenticated. The trial court admitted the receipt on the basis that it was simply offered to show what was found in the bag, and not for the truth of the matters asserted on its face. Defendant argues that the receipt was inadmissible hearsay and violated his confrontation rights because it was offered to show that he purchased the gun the day before the crimes.

We will affirm the trial court's admission of evidence absent a clear abuse of discretion. State v. Worley, 100 N.M. 720, 723, 676 P.2d 247, 250 (1984). A hearsay statement is an out-of-court oral or written assertion offered to prove the truth of the matter asserted therein. SCRA 1986, 11-801(A), (C). Hearsay is inadmissible absent an exception under the rules of evidence. SCRA 1986, 11-802. We agree with the State that the receipt was not hearsay. First, the receipt was offered simply to show what was found in the bag. Second, it also tended to prove that Defendant had possession and control of the contents of the bag. The receipt was not offered to prove that Defendant had purchased the gun at the time, place, and price indicated on the sales slip. It is true that the jury might have inferred those matters from the receipt. However, evidence admissible for one purpose is not to be excluded because it is inadmissible for another purpose. State v. Wyman, 96 N.M. 558, 560, 632 P.2d 1196, 1198 (Ct.App. 1981). Moreover, Defendant did not request an instruction limiting the jury's consideration of the receipt to the purpose for which it was admitted. See SCRA 1986, 11-105; State v. Gonzales, 113 N.M. 221, 228, 824 P.2d 1023, 1030 (1992) (failure to request limiting instruction resulted in waiver of error).

Defendant also asserts that the receipt was inadmissible because it was unauthenticated. See SCRA 1986, 11-901(A). The requirement of authentication is satisfied by evidence sufficient to support a finding that the matter is what it is purported to be. Id. We reiterate that the receipt was admitted to show what was found in the bag, and that Defendant had control over the bag's contents. The receipt was not offered to prove the matters asserted on its face. Under these circumstances, we conclude Officer Holguin was a witness with knowledge sufficient to provide the required authentication. See SCRA 11-901(B)(1).

4. EVIDENCE OF LIQUOR LICENSE

Defendant claims the trial court erred in admitting evidence that the lounge was licensed because the State failed to provide the defense, in advance, information regarding that evidence. Because the State did not offer the license itself — only the testimony of Officer Holguin that he saw the license — Defendant claims he was unable to adequately defend his case as to the licensing element of Section 30-7-3, unlawful carrying of a firearm in a licensed liquor establishment. Defendant cites no authority for his argument and raises the issue under State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct.App. 1985).

Although we need not consider Defendant's argument, In re Doe, 100 N.M. at 765, 676 P.2d at 1330, it is easily answered. Defendant knew of the charges against him. The State had the burden of proving that the establishment was licensed and disclosed the identity of its witnesses, including Officer Holguin. Defendant had an opportunity to learn of the officer's testimony. If he failed to do so, he cannot complain. This issue has no merit.

5. SUFFICIENCY OF THE EVIDENCE

Defendant maintains there was insufficient evidence supporting his convictions. To determine the sufficiency of the evidence, we inquire whether there exists substantial evidence to support a guilty verdict beyond a reasonable doubt as to each element essential to a conviction. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We "view the evidence in the light most favorable to the [S]tate, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict." Id.

a. To sustain the charge of negligent use of a deadly weapon in this case, the State was required to prove that Defendant carried a firearm while under the influence of alcohol. See § 30-7-4(A)(2). Officer Holguin testified that he saw Defendant in the back seat of the car carrying a handgun. There was also sufficient evidence that Defendant was under the influence of alcohol at the time. While "under the influence" is not defined in Section 30-7-4, we find guidance from authority interpreting that phrase in the context of motor vehicle operation. A person drives while "under the influence" "[i]f, by virtue of having consumed intoxicating liquor, [his or her] ability to handle [a] vehicle with safety . . . [is] lessened to the slightest degree." State v. Copeland, 105 N.M. 27, 34, 727 P.2d 1342, 1349 (Ct.App.), cert. denied, 104 N.M. 702, 726 P.2d 856 (1986); SCRA 1986, 14-243. Officer Holguin testified that Defendant had a strong odor of alcohol about him, had bloodshot eyes, disobeyed his commands, was very talkative, and mocked the officers. Holguin, who had experience with about one hundred DWI arrests, also stated that Defendant's voice and speech patterns indicated he was impaired. Both Mr. Rueda and Ms. Amalla testified that Defendant was drinking inside the bar. Defendant points to evidence tending to explain away his physical symptoms and lack of cooperation. He also argues that the officer's testimony must be discounted because he did not administer any field sobriety or blood alcohol tests. With regard to Defendant's latter concern, we note Officer Holguin's testimony that he did not test Defendant because he was not driving. As for Defendant's attempt to provide alternative explanations for the evidence, it was for the jury to weigh the evidence, not this Court. Sutphin, 107 N.M. at 131, 753 P.2d at 1319. We conclude that Defendant's conviction for negligent use of a deadly weapon is supported by substantial evidence.

b. To sustain the charge of unlawful carrying of a firearm in a licensed liquor establishment, the State was required to prove that Defendant carried a loaded or unloaded firearm in an establishment licensed to dispense alcoholic beverages. Section 30-7-3(A); see also Soto, 95 N.M. at 82, 619 P.2d at 186.

Defendant states that the only evidence showing that the Hiway Package Lounge was licensed to dispense alcoholic beverages came through the testimony of Officer Holguin. He argues "the officer did not remember what the license said, nor who signed" it and "[t]here was no evidence that the license had not expired." Defendant argues that this evidence was insufficient. We disagree.

Officer Holguin testified that he had been in the lounge "numerous" times and knew it sold alcoholic beverages. Mr. Rueda and Ms. Amalla testified that they had been drinking beer with Defendant immediately prior to the arrest. Officer Holguin said he entered the lounge on the day following the incident and saw the liquor license on the wall. He wrote down the number of the license: 916. Holguin stated unequivocally that he knew the Hiway Package Lounge was a "liquor establishment." Additionally, on cross-examination, defense counsel asked the officer how he knew that the license was authentic. Holguin answered that he knew because he had called the Department of Alcoholic Beverage Control (ABC). Defense counsel did not allow the officer to relate the telephone conversation, and the interrogation on that subject ended.

While it may have been stronger proof to have offered the license, the testimony of the owner of the bar, see id., or the testimony of a representative of the ABC, we believe the evidence presented made out a prima facie case of licensing. The fact that there was no evidence that the license had not expired does not defeat the showing. The jury could reasonably infer that the license was in effect at the time of the incident. The evidence that supports this inference is the fact that the incident occurred on March 16, the officer saw the license on March 17, and NMSA 1978, Section 60-6B-5 (Repl.Pamp. 1992), provides that all licenses provided for in the Liquor Control Act expire on June 30 of each year. Thus, the fact that the lounge displayed a license in March supports an inference that the license had not expired.

Additionally, we note that it is the express policy of this State that the sale of alcoholic beverages shall be licensed, and that the Director of the ABC shall enforce that policy. See NMSA 1978, § 60-3A-2 (Repl.Pamp. 1992); see also NMSA 1978, § 60-7A-4.1 (Repl.Pamp. 1992) (a felony for any person to sell alcoholic beverages at any place other than a licensed premises or as otherwise allowed by Liquor Control Act); NMSA 1978, §§ 60-4B-4 to -5 (Repl.Pamp. 1992) (Director shall have power to investigate and to issue regulations, both for the purpose of enforcing the Liquor Control Act). The existence of a license on the premises of the Hiway Package Lounge is evidence that this policy was followed with regard to the lounge. To adopt Defendant's argument, we would have to presume that the Director allowed the lounge to dispense alcoholic beverages without a license for no less than eight and a half months. This we cannot do.

In the absence of evidence to the contrary, there is a presumption that public officers have performed their duties in a regular and lawful manner, and this presumption places on the opposing party the burden of producing evidence to the contrary. See Fulwiler v. Traders General Ins. Co., 59 N.M. 366, 374-75, 285 P.2d 140, 145-46 (1955) (It was not error for the trial court to refuse to rule that a conditional sales contract was invalid for lack of acknowledgement, in part because the public official whose duty it was to receive and file an acknowledged copy of the contract was presumed to have done his duty — i.e., the official was presumed to have ascertained that the contract was acknowledged before accepting it for filing.); Herrera v. Zia Land Co., 51 N.M. 390, 391-92, 185 P.2d 975, 976 (1947) (A meeting of the town board of trustees was presumed to be a regular meeting because "the law presumes that public officials perform their duties until the contrary is shown."); State ex rel. Delgado v. Romero, 17 N.M. 81, 85, 124 P. 649, 650 (1912) (presumption exists that each department of the government will do its duty); People v. Goodenough, 89 Misc.2d 455, 391 N.Y.S.2d 940, 941-42 (Just.Ct. 1977) (presumption existed that notice of suspension of driver's license was transmitted to the defendant by public official whose duty it was to deliver the notice); see also City of Houston v. Moody, 572 S.W.2d 13, 14-15 (Tex.Ct.App. 1978) (presumption existed that president of public water district was performing his duties in a regular, lawful manner when he signed promissory notes on behalf of district). We will not presume that the license displayed in March had expired the prior June, because that would require us to assume ABC allowed liquor to be sold for an extensive period of time after the statutory expiration date. We will allow the jury to draw an inference that the license displayed in March had been validly issued at one time, and that it was valid in March, based on the officer's description that it was a liquor license and that it was displayed for public view, and on a presumption that the agency was doing its job.

Defendant did not present any evidence to rebut the prima facie showing that the establishment was properly licensed. Thus, substantial evidence supports this element of the crime. See Soto, 95 N.M. at 82, 619 P.2d at 186.

c. We also hold that substantial evidence supports a finding beyond a reasonable doubt that Defendant carried a firearm in the lounge. Mr. Rueda and Ms. Amalla met Defendant outside the lounge. Defendant was carrying a bag. He took it inside the lounge. Later, when Officer Holguin searched the inside of the car, he found a bag. It contained a handgun. Although neither Mr. Rueda nor Ms. Amalla could identify the bag at trial, they testified that the bag did not belong to them. A reasonable inference is that it was the same one Defendant carried in the lounge. Also, since the bag contained a handgun when Officer Holguin conducted his search, and since Mr. Rueda and Ms. Amalla testified that the gun did not belong to them, it is reasonable to infer the bag contained the handgun when Defendant carried it in the lounge. See State v. Paul, 82 N.M. 619, 623, 485 P.2d 375, 379 (Ct.App.) (evidence connecting defendant to crime, although circumstantial, could properly serve as basis for inference of fact essential to establishment of offense), cert. denied, 82 N.M. 601, 485 P.2d 357 (1971). We hold that this element also is supported by substantial evidence.

6. INSTRUCTIONS

Defendant raises five issues concerning the adequacy of the trial court's instructions to the jury. Defendant contends that the trial court erred in its instructions on the charge of negligent use of a deadly weapon. He has moved that we certify these issues to the Supreme Court. See NMSA 1978, § 34-5-14(C) (Repl.Pamp. 1990). We deny Defendant's request.

a. Defendant first argues that the trial court should have modified SCRA 1986, 14-703 to add the word "negligently." However, the trial court is required to give uniform jury instructions on the elements without modification. SCRA 1986, 14-101 to -9004 general use note. SCRA 14-703 is the elements instruction for the offense of negligent use of a deadly weapon. Further, addition of the word "negligently" was unnecessary since Section 30-7-4(A)(2) defines negligent use of a deadly weapon as "carrying a firearm while under the influence of an intoxicant or narcotic." The proscribed conduct is negligence per se. The trial court did not err in refusing Defendant's requested instruction.

b. Defendant also contends that the trial court erred in refusing his requested instruction defining negligence. As stated above, Uniform Jury Instruction 14-703 adequately defined negligence for the jury.

c. Defendant next argues that the trial court erred in refusing his requested instruction that the odor of alcohol on one's breath is not a sufficient basis for finding intoxication. See Lopez v. Maes, 81 N.M. 693, 699-701, 472 P.2d 658, 664-65 (Ct.App.), cert. denied, 81 N.M. 721, 472 P.2d 984 (1970). However, the odor of alcohol was not the only indication that Defendant was under the influence. Officer Holguin testified that Defendant had bloodshot eyes, disregarded his instructions, was very talkative, and mocked the officers. Other indicators were Defendant's voice and speech patterns. The officer stated his opinion that Defendant was under the influence. A party is entitled to an instruction on his theory of the case only if there is evidence to support it. State v. Ontiveros, 111 N.M. 90, 93, 801 P.2d 672, 675 (Ct.App.), cert. denied, 111 N.M. 77, 801 P.2d 659 (1990). Defendant's requested instruction was correctly refused because it misrepresented the evidence before the jury. See State v. Kraul, 90 N.M. 314, 317, 563 P.2d 108, 111 (Ct.App.) (instruction which is confusing is properly refused), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977).

d. Defendant additionally contends that the trial court erred in refusing to submit Element No. 3 of the Uniform Jury Instruction for unlawful carrying of a firearm in a licensed liquor establishment. See SCRA 1986, 14-702. Defendant argues that legal authority was an issue in this case because there was evidence that he was seen with the gun in the parking lot, a place he could lawfully possess one. See § 30-7-3(A)(4). Instruction No. 5 adequately instructed the jury on Defendant's right to possess a firearm in the parking lot. "Instructions are sufficient if, when considered as a whole, they fairly present the issues and the applicable law." State v. Lucero, 110 N.M. 50, 52, 791 P.2d 804, 806 (Ct.App.), cert. denied, 110 N.M. 44, 791 P.2d 798 (1990).

e. Defendant contends that the trial court erred in refusing his requested instruction differentiating between possession of a firearm in a licensed liquor establishment and possession in the parking lot. We agree with the State that the issue of possession of a firearm in the parking lot was adequately presented to the jury in Instruction No. 5. See id.

7. INCOMPLETE RECORD

The parties seem to agree that a portion of the parties' discussion concerning jury instructions is missing from the record. Citing State v. Moore, 87 N.M. 412, 534 P.2d 1124 (Ct.App. 1975), Defendant contends he has been denied due process and his right to appeal. See also Manlove v. Sullivan, 108 N.M. 471, 474 n. 1, 775 P.2d 237, 240 n. 1 (1989). The State responds that Defendant can show no prejudice from the incomplete record.

It appears that the missing portion of the record dealt solely with jury instructions. Defendant's requested instructions are contained in the record proper. He has fully argued several instructions issues in this appeal. The State does not assert that any of those issues were not preserved. Moreover, this Court can consider Defendant's arguments by reviewing the instructions in light of the testimony at trial. We also note that before numbering the instructions, the trial court gave each party an opportunity to state its objections on the record. In short, Defendant has not demonstrated how the missing portions of the record prejudiced him. This case is distinguishable from Moore, where the complete absence of a transcript combined with the inability of this Court to review the Defendant's contentions without a transcript made any attempt at review impossible. Moore, 87 N.M. at 412-13, 534 P.2d at 1124-25. We conclude that Defendant has not established a deprivation of due process or of his right to appeal.

8. CUMULATIVE ERROR

Finding no error, we find no cumulative error. See State v. Larson, 107 N.M. 85, 86, 752 P.2d 1101, 1102 (Ct.App. 1988).

CONCLUSION

We affirm Defendant's convictions for negligent use of a deadly weapon and unlawful carrying of a firearm in a licensed liquor establishment.

IT IS SO ORDERED.

ALARID, C.J., and MINZNER, J., concur.

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STATE v. RIVERA
(Mar 2, 1993)