A-1-CA-34521 | Omnilex

Gesamter Gesetzestext

Court of Appeals of New Mexico
Filed 1/28/2019 1:03 PM
Mark Reynolds

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed 1/2) (2019 1:03 PM
Ul. ~£-
Plaintiff-Appellee, Mark Reynolds |
V. A-1-CA-34521
ROBERT GENE CHESTER,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Freddie J. Romero, District Judge

Hector H. Balderas, Attorney General
Marko D. Hananel, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Public Defender
Santa Fe, NM
Tania Shahani, Assistant Appellate Defender
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
VANZI, Judge.
{1} Defendant Robert Gene Chester appeals his convictions for conspiracy to
commit arson and retaliation against a witness, challenging the sufficiency of the

evidence. Defendant also argues for the first time on appeal that the jury was not

properly instructed. Additionally, Defendant argues that the district court sentenced

him above the statutory maximum for conspiracy to commit arson. We conclude that
substantial evidence supported both convictions and that the lack of unrequested jury
instructions did not constitute fundamental error. However, we hold that Defendant
was incorrectly sentenced and remand for re-sentencing.

BACKGROUND

2 The underlying facts of this case are undisputed. Defendant was in an
extramarital relationship with Kimberlee Egeler for almost ten years until she broke
up with him in late 2010. Ms. Egeler—who initially bonded with Defendant over
their mutual love of professional racing, drag racing, and cars—subsequently
secured a restraining order against Defendant in May 2011. In October 2012, Ms.
Egeler testified against Defendant in a separate matter. Based on Ms. Egeler’s
testimony, Defendant was convicted of aggravated stalking. As a result of the
conviction, Defendant’s probation was revoked in two other cases.

{3} Early in the morning on November 20, 2012, before Defendant’s sentencing
for the aggravated stalking charge, Ms. Egeler awoke to find that one of her cars, a
2001 Chevrolet Monte Carlo SuperSport (the Monte Carlo), was on fire. Ms. Egeler
hosed down the hood of the car and after putting the fire out, she discovered the
source of the fire was an aluminum bottle resting where the hood met the windshield.
The fire marshal later identified the bottle, which he described as “some sort of

Molotov Cocktail,” as the likely source of the fire. Defendant was subsequently

charged with conspiracy to commit arson and retaliation against a witness. The
testimony at Defendant’s trial was as follows.

{4} Crystal Rose Servantez testified that she started the fire at the behest of her
then-boyfriend, Isaiah Chavez, an inmate incarcerated in the same detention center
as Defendant. Ms. Servantez testified that Mr. Chavez promised to pay her $400 to
set the car on fire. However, Ms. Servantez never received the money. Ms. Servantez
testified that she did not know Defendant or Ms. Egeler, and set the car on fire only
because Mr. Chavez asked her to.

5}. Celeste Chester, Defendant’s wife of 41 years, also testified. She stated that
prior to the incident, and while Defendant was incarcerated, she made two deposits
of $200 in Mr. Chavez’s detention center account at Defendant’s request. Defendant
told Mrs. Chester that he wanted to loan Mr. Chavez the money so he could afford
medicine for his sick children. Mrs. Chester also testified that Defendant called her
from the detention center to ask if she had heard about any “problems” out on the
“west side of town” involving fire trucks.

{6} Ms. Egeler testified about the condition of the Monte Carlo. The Monte Carlo
was in “good” condition besides some damage to the rear corner panel from a
previous accident. Ms. Egeler made significant improvements to the Monte Carlo,
including installing chrome wheels, NASCAR tires, and a chrome engine cover. She

did not testify as to the car’s purchase price or mileage. As a result of the fire, the

Monte Carlo’s windshield was cracked and the cowling by the windshield wipers
and one wiper melted and leaked down through the wheel well, damaging the paint
and hood. Ms. Egeler had insurance for the Monte Carlo and took the car in for
repairs. After having the Monte Carlo repaired, Ms. Egeler received insurance
documents giving a breakdown of the repairs and stating that the repairs cost
$2,605.92.

{7} Defense counsel moved for directed verdict on both counts, challenging the
sufficiency of the evidence. The district court denied Defendant’s motion, holding
that substantial evidence supported both the conspiracy to commit arson and
retaliation against a witness charges. The defense did not present any additional
evidence, and the jury returned a guilty verdict on both counts. This appeal followed.
DISCUSSION

{83} Defendant appeals his convictions on several grounds. First, Defendant argues
that there was insufficient evidence to support his convictions. Second, Defendant
argues for the first time on appeal that the court failed to properly instruct the jury
on the definition of the market value of the Monte Carlo for purposes of determining
Defendant’s level of culpability and the elements of the underlying felony (i.e.,
aggravated stalking) that formed part of the basis of the witness retaliation charge.
Lastly, Defendant argues that he was erroneously sentenced for conspiracy to

commit arson above the statutory maximum. We address each argument in turn.

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I. Substantial Evidence Supported Both Charges

9} “Our review of the denial of a directed verdict motion asks whether sufficient
evidence was adduced to support the underlying charge.” State v. Sena, 2008-
NMSC-053, 7 10, 144 N.M. 821, 192 P.3d 1198. “The test for sufficiency of the
evidence is whether substantial evidence of either a direct or circumstantial nature
exists to support a verdict of guilty beyond a reasonable doubt with respect to every
element essential to a conviction.” State v. Largo, 2012-NMSC-015, 4 30, 278 P.3d
532 (internal quotation marks and citation omitted). “ ‘Substantial evidence is
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.” Jd. (quoting State v. Rojo, 1999-NMSC-001, J 19, 126 N.M. 438, 971
P.2d 829). “In reviewing whether there was sufficient evidence to support a
conviction, we resolve all disputed facts in favor of the State, indulge all reasonable
inferences in support of the verdict, and disregard all evidence and inferences to the
contrary.” Jd. (internal quotation marks and citation omitted). “We do not reweigh
the evidence or substitute our judgment for that of the fact[-]finder as long as there
is sufficient evidence to support the verdict.” State v. Pitner, 2016-NMCA-102, § 6,
385 P.3d 665 (internal quotation marks and citation omitted). “Our role is to
determine whether a rational fact-finder could determine beyond a reasonable doubt

the essential facts necessary to convict the accused.” State v. Garcia, 2005-NMSC-

017, 4 12, 138 N.M. 1, 116 P.3d 72.

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A. Conspiracy to Commit Arson
{10} Defendant contends that there was insufficient evidence of an agreement
between Defendant, Mr. Chavez, and Ms. Servantez to set fire to Ms. Egeler’s Monte
Carlo. We disagree. “Conspiracy consists of knowingly combining with another for
the purpose of committing a felony within or without this state.” NMSA 1978,
§ 30-28-2 (1979). “A conspiracy may be established by circumstantial evidence.
Generally, the agreement is a matter of inference from the facts and circumstances.”
State v. Gallegos, 2011-NMSC-027, J 26, 149 N.M. 704, 254 P.3d 655 (internal
quotation marks and citation omitted); see State v. Montoya, 2015-NMSC-010, 4 53,
345 P.3d 1056 (“Intent is subjective and is almost always inferred from other facts
in the case, as it is rarely established by direct evidence.” (internal quotation marks
and citation omitted)). Consistent with UJI 14-2810 NMRA, the jury was instructed,
in pertinent part,
For you to find [D]efendant guilty of conspiracy to commit arson
(over $2500) as charged in Count 2, the [S]tate must prove to your
satisfaction beyond a reasonable doubt each of the following elements

of the crime:

1. [D]Jefendant and another person by words or acts agreed
together to commit arson (over $2500)[.]

{11}. Defendant argues that there was insufficient evidence of an agreement
because Ms. Servantez testified that she did not know Defendant, and there was no

direct evidence that Defendant knew about the agreement between Mr. Chavez and

Ms. Servantez. However, as the State correctly points out, “[t]he prosecutor need not
prove that each defendant knew all the details, goals or other participants.” Gallegos,
2011-NMSC-027, § 26 (internal quotation marks and citation omitted). Rather, the
State was simply required to prove that Defendant agreed with another person by
words or acts to commit a felony. See UJI 14-2810. In reviewing the evidence in the
light most favorable to the verdict, we conclude that there was substantial evidence
that Defendant agreed with another to set fire to Ms. Egeler’s Monte Carlo.

123, While there was no direct evidence that Defendant agreed with Mr. Chavez or
Ms. Servantez to set fire to the Monte Carlo, “[g]enerally, the agreement is a matter
of inference from the facts and circumstances.” Gallegos, 2011-NMSC-027, 26
(internal quotation marks and citation omitted). Ms. Servantez testified that she did
not know either Defendant or Ms. Egeler, and that she set the fire to the Monte Carlo
because Mr. Chavez offered to pay her $400. At the time, Mr. Chavez was
incarcerated at the same detention center as Defendant. Mrs. Chester testified that
she deposited $400, the same amount that was promised to Ms. Servantez, into Mr.
Chavez’s detention center account at the direction of Defendant. While Defendant
told his wife that the money was for Mr. Chavez’s sick children, the jury was not
required to believe this explanation and could rely on common sense and experience
to make a reasonable inference that this was just a cover. See State v. Phillips, 2000-

NMCA-028, § 14, 128 N.M. 777, 999 P.2d 421 (“[T]he jury was free to use their

common sense to look through testimony and draw inferences from all the
surrounding circumstances.” (internal quotation marks and citation omitted).
Additionally, Defendant called his wife from the detention center and asked her if
she had heard about any “problems” out on the “west side of town” involving fire
trucks.

{13} Defendant’s apparent motive also supported the verdict. Ms. Egeler broke up
with Defendant and obtained a restraining order against him. She testified against
Defendant a month before the incident, and as a result, he was convicted of
aggravated stalking and had his probation revoked in two separate cases. Looking at
the totality of the evidence, we conclude that, although circumstantial, there was
substantial evidence that Defendant agreed with another person to set fire to Ms.
Egeler’s Monte Carlo. See Gallegos, 2011-NMSC-027, ¥ 26 (“The agreement...
may be shown to exist by acts which demonstrate that the alleged co-conspirator
knew of and participated in the scheme.”(internal quotation marks and citation
omitted)).

414; Defendant also argues that there was insufficient evidence that the Monte
Carlo had a market value over $2500. We are not persuaded. To support a conviction
for conspiracy under Section 30-28-2, the State was required to prove that Defendant
conspired to commit a felony. Arson is the malicious or willful starting of a fire with

the purpose of destroying or damaging another person’s property and constitutes a

third degree felony when the damage is over $2,500 but not more than $20,000. See
NMSA 1978, § 30-17-5(A), (E) (2006). Consistent with UJI 14-1701 NMRA, the
jury was instructed that the State had to prove beyond a reasonable doubt that the
Monte Carlo had a market value of over $2,500 in order to find Defendant guilty of
conspiracy to commit arson. UJI 14-1707 NMRA defines “market value” as “the
price at which the property could ordinarily be bought or sold just prior to the time
of its destruction or damage.”

45} Asa preliminary matter, the State argues that UJI 14-1701 is fundamentally
flawed and requires correction because it refers to market value of the property to
determine the severity of the arson charge, whereas § 30-17-5 refers to the damage
to the property. We recognize the discrepancy between the uniform jury instruction
and the statute. Compare UJI 14-1701 with § 30-17-5. Nonetheless, “[uJniform jury
instructions are presumed to be correct.” State v. Ortega, 2014-NMSC-017, § 32,
327 P.3d 1076. We understand that “the adoption of a UJI ‘does not preclude this
Court from insuring that the rights of individuals are protected,’ and this Court is
free to amend, modify or abolish UJIs that have not been specifically addressed by
the Supreme Court on appeal.” State v. Acosta, 1997-NMCA-035, § 14, 123 N.M.
273, 939 P.2d 1081 (alteration, internal quotation marks, and citation omitted).

However, given our holding that there was substantial evidence of the Monte Carlo’s

market value, the State’s argument is moot.' Nor does Defendant challenge the
instruction on appeal.

{16} Despite the potential discrepancy between the arson statute and the UJI, we
analyze the evidence in light of the jury instructions submitted at trial. See State v.
Barreras, 2007-NMCA-067, 4 3, 141 N.M. 653, 159 P.3d 1138 (“Because this is an
issue that arose on [the d]Jefendant’s directed verdict motion, we must analyze the
evidence in light of the jury instructions submitted at trial.”); see also State v.
Schackow, 2006-NMCA-123, J 8, 140 N.M. 506, 143 P.3d 745 (“Jury instructions
become the law of the case against which the sufficiency of the evidence is to be
measured.” (internal quotation marks and citation omitted)).

{17} Defendant contends that the State failed to prove that the Monte Carlo had a
market value over $2,500 because the State only provided evidence of the cost of
repair, which Defendant claims is irrelevant. Defendant cites State v. Gallegos,
1957-NMSC-052, 63 N.M. 57, 312 P.2d 1067 for the proposition that the jury cannot
consider the Monte Carlo’s cost of repair or replacement in determining market
value. In Gallegos, the only evidence of the value of a stolen plow was the cost of

materials and assembly that the victim paid $75 for years before it was stolen.

' Moreover, the State did not object to the inclusion of UJI 14-1701. See State v.

Boeglin, 1987-NMSC-002, J 11, 105 N.M. 247, 731 P.2d 943 (holding that failure
to object to erroneous jury instructions constituted waiver, but reviewing the issue
for fundamental error).

Id. § 1, 3. The jury found that the plow was worth $75 at the time it was stolen and
found defendant guilty of larceny over $50. Jd. § 1. Our Supreme Court reversed,
stating, “There was substantial evidence of value but this evidence all related to
extrinsic or replacement value, the value obviously as found by the jury. But being
limited to a consideration of market value only, the jury was not warranted in
considering cost or replacement value.” Jd. J 4.

{18} We do not read Gallegos as holding that the jury cannot consider replacement
cost as evidence of market value, but rather that the jury cannot simply substitute
replacement cost for market value. As subsequent cases have made clear, juries are
permitted to consider other evidence, such as replacement cost, when calculating
market value. See, e.g., State v. Barr, 1999-NMCA-081, 4 30, 127 N.M. 504, 984
P.2d 185, (“[The victim’s] testimony of the purchase price of consumer goods, when
coupled with information about the age and condition of the goods, is sufficient by
itself to allow a jury to draw reasonable inferences about the present market value
of the items.”); State v. Hughes, 1988-NMCA-108, § 10, 108 N.M. 143, 767 P.2d
382 (“[The victim’s] testimony was tantamount to an owner’s opinion as to the value
of the property in its condition at trial and also as to the cost of purchasing new
replacement property. The jury could reasonably infer from this testimony that the
price at which the property could ordinarily have been bought or sold was in excess

of $100 at the time it became received stolen property.”).

{19} Defendant argues that even if the jury could assess the Monte Carlo’s market
value with evidence of its cost of repair, the State failed to meet its burden because
there was no evidence that the vehicle’s cost of repair was less than its replacement
cost. In support of his argument, Defendant cites to State v. Fernandez, 2015-
NMCA-091, 355 P.3d 858. In Fernandez, the defendant was charged with felony
criminal damage to property in excess of $1,000 after ramming his car into the
victim’s twelve-year-old pickup truck. See id. J{ 2, 3. At trial, the victim testified to
the truck’s damage, including a “destroyed” back bumper, a misaligned tailgate, and
a severe dent in the front door. /d. J 6. Additionally, the victim testified that the cost
to repair the damage was about $1,500. Jd. However, the State did not offer
testimony as to the condition of the truck, its mileage, or its likely replacement cost.
Id. | 7. On appeal, the defendant argued that the State did not meet its burden in
proving the amount of damage per UJI 14-1510 NMRA because the State did not
prove that the truck’s cost of repair was less than the replacement cost. Fernandez,
2015-NMCA-091, 4 7. We noted, “In some cases . . . the facts may clearly establish
that the replacement cost would exceed the cost of repair and no additional evidence
or testimony may be required[.]” /d. § 9. However, we concluded that without more
information such as mileage, “the ‘average juror’ had no basis upon which to
determine that the replacement cost of [the victim’s] pickup truck, which was over

a decade old and had noticeable preexisting damage, would be ‘well over’ the $1500

cost of repair.” Jd. J 10. Thus, we held that the State failed to meet its burden in
proving felony property damage. Jd. J 12.

20} Fernandez is distinguishable. Unlike Fernandez, where the victim testified
only that the truck’s repair costs were about $1,500, see id. J 6, the State, here,
presented evidence indicating that Ms. Egeler’s insurance company paid for the
repairs. We find this distinction significant. While the State did not present any direct
evidence of the Monte Carlo’s market value or replacement cost, the jury was
permitted to make logical inferences and draw on their own life experiences to
conclude that Ms. Egeler’s insurance company would not have paid for $2,605.92
worth of repairs if it had been cheaper to “total” the vehicle and pay for its market
value or replacement cost. See, e.g., State v. Cobrera, 2013-NMSC-012, § 15, 300
P.3d 729 (permitting the jury to draw on their own knowledge and life experiences
to conclude that the cost of repairing or replacing damaged items exceeded $1,000);
State v. Barreras, 2007-NMCA-067, 7 9, 141 N.M. 653, 159 P.3d 1138 (permitting
the jury to infer that the replacement cost of a year-old Cadillac Escalade in good
condition would be greater than the $5,100 cost of repair). Moreover, unlike
Fernandez, where the condition of the truck was unknown, see id. J 7, Ms. Egeler,
a car enthusiast, testified that the Monte Carlo was in “good” condition and had
numerous upgrades such as a chrome wheels, specialty tires, and a chrome engine

cover.

21}. Defendant argues that the average juror would not understand how insurance
companies handle claims. However, in light of our Mandatory Financial
Responsibility Act requiring that all motor vehicles be insured, see NMSA 1978,
§ 66-5-205 (2013), we are not convinced that the average juror could not understand
the basics of insurance coverage and claims. Defendant also argues that since the
State did not introduce the actual insurance bill into evidence, it was unclear if the
bill included repairs for the Monte Carlo’s preexisting damage. However, “we
resolve all disputed facts in favor of the State, indulge all reasonable inferences in
support of the verdict, and disregard all evidence and inferences to the contrary.”
Largo, 2012-NMSC-015, 4 30 (internal quotation marks and citation omitted). Given
our standard of review, we conclude that it was reasonable for the jury to infer that
Ms. Egeler’s insurance company would not pay to repair preexisting damage on the
Monte Carlo.

{22} Given Ms. Egeler’s testimony about her insurance coverage and her vehicle’s
condition and upgrades, we conclude that there was substantial evidence that the
Monte Carlo’s market value exceeded $2,500, and consequently, that substantial
evidence supported his conviction for conspiracy to commit arson.

B. Retaliation Against a Witness

{23} To support a conviction for retaliation against a witness, the State was

required to prove that Defendant “knowingly engag[ed] in conduct that cause[d]

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... damage to the tangible property of another person] . .. with the intent to retaliate
against any person for providing any information relating to the commission or
possible commission of a felony offense or a violation of conditions of probation[.]”
NMSA 1978, § 30-24-3(B) (1997); see UJI 14-2404 NMRA. Defendant claims that
that State failed to present sufficient evidence that Defendant knowingly engaged in
conduct that damaged Ms. Egeler’s Monte Carlo because “the link between
[Defendant] and Ms. Servantez was never conclusively established by the State.”
However, direct evidence of knowledge and intent is rarely available, and thus,
knowledge and intent may be proven by circumstantial evidence. See State v. Ortiz,
2017-NMCA-006, { 23, 387 P.3d 323 (noting that knowledge and intent may be
proved by circumstantial evidence). As discussed above, there was sufficient
evidence, although circumstantial, that Defendant engaged in a conspiracy to set fire
to Ms. Egeler’s car. Ms. Servantez testified that she set Ms. Egeler’s Monte Carlo
on fire at the behest of Mr. Chavez in exchange for $400. Defendant’s wife testified
that Defendant asked her to deposit $400 into Mr. Chavez’ detention center account.
She also testified that Defendant called her to ask if she had heard of any “problems”
out on the “west side of town” involving fire trucks. Furthermore, there was
substantial evidence of Defendant’s motive to retaliate against Ms. Egeler for
testifying against him. Viewing this evidence as a whole and in the light most

favorable to the verdict, we conclude that there was substantial evidence that

Defendant knowingly engaged in conduct that caused damage to Ms. Egeler’s
property.

24 Defendant next argues that the State failed to prove that Defendant committed
acts constituting aggravated stalking. Defendant’s aggravated stalking conviction
was the underlying felony proceeding in which Ms. Egeler testified. Specifically,
Defendant challenges the State’s decision to substantiate the underlying felony by
entering into evidence a judgment and sentence rather than having Ms. Egeler testify
as to Defendant’s actions constituting aggravating stalking. However, we perceive
no error in the State’s method of proof. Ms. Egeler testified that she secured a
restraining order against Defendant and served as a witness against Defendant in
another case on October 17, 2012. Instead of eliciting testimony about the underlying
felony in that case, the State entered into evidence a redacted judgment and sentence
showing that “Defendant was convicted on October 17, 2012 .. . of the offense of
Aggravated Stalking (Violation of Protection Order) . . . a third degree felony[.]”
Additionally, the State entered into evidence two orders revoking Defendant’s
probation in separate matters as a result of his felony aggravated stalking conviction.
Besides arguing that the jury should have been instructed on the underlying felony’s
elements, an unpreserved claim of error, which we address below, Defendant fails
to provide any support for the contention that this evidence was insufficient to prove

that Defendant committed the felony of aggravated stalking, and we assume none

exists. See In re Adoption of Doe, 1984-NMSC-024, § 2, 100 N.M. 764, 676 P.2d
1329. Therefore, we conclude that substantial evidence supported Defendant’s
conviction for retaliation against a witness.

II.‘ Failure to Instruct the Jury Did Not Constitute Fundamental Error

{25} Because Defendant failed to preserve any error with respect to the failure to
properly instruct the jury, we review only for fundamental error. See Rule 12-
321(B)(2)(c) NMRA; State v. Barber, 2004-NMSC-019, ¥ 8, 135 N.M. 621, 92 P.3d
633. Fundamental error only occurs in “cases with defendants who are indisputably
innocent, and cases in which a mistake in the process makes a conviction
fundamentally unfair notwithstanding the apparent guilt of the accused.” Barber,
2004-NMSC-019, 4 17. When this Court reviews jury instructions for fundamental
error, we will only reverse the jury verdict if doing so is “necessary to prevent a
miscarriage of justice.” State v. Sandoval, 2011-NMSC-022, 4 13, 150 N.M. 224,
258 P.3d 1016 (internal quotation marks and citation omitted). In reviewing a district
court’s failure to instruct, “[w]e first determine whether a reasonable juror would
have been confused or misdirected by the jury instructions.” Jd. J 20. (alteration,
internal quotation marks, and citation omitted). “[J]uror confusion or misdirection
may stem .. . from instructions which, through omission or misstatement, fail to

provide the juror with an accurate rendition of the relevant law.” State v. Benally,

2001-NMSC-033, 4 12, 131 N.M. 258, 34 P.3d 1134.

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A. Failure to Instruct on Definition of Market Value

26} Consistent with UJI 14-1701, the jury was instructed as to all the essential
elements of arson, including the requirement that the burned property have a market
value over a certain amount. However, Defendant claims the district court
committed fundamental error in failing to provide the jury with the definition of
“market value” contained in UJI 14-1707. In most cases, the failure to instruct on a
definition or amplification of an essential element does not rise to the level of
fundamental error. See Barber, 2004-NMSC-019, § 20. Moreover, “definitional
instructions are [generally] not required when the terms are used in their ordinary
sense and no error is committed in refusing to instruct on a term or word with a
common meaning.” State v. Gonzales, 1991-NMSC-075, § 30, 112 N.M. 544, 817
P.2d 1186. UJI 14-1707 defines “market value” as “the price at which the property
could ordinarily be bought or sold just prior to the time of its destruction or damage.”
Defendant contends that there is no standard legal definition for market value, and
consequently there is no common definition that the average juror can rely on. In
support of his argument, Defendant cites UJI 14-1510 and UJI 14-1602 NMRA,
which define market value for other crimes, to illustrate “differing legal definitions.”
However, both UJI 14-1510 and UJI 14-1602, as well as UJI 14-1707, define market
value in essentially the same way as the price at which the property could ordinarily

be bought or sold. Compare UJI 14-1510, with UJI 14-1602, and UJI 14-1707.

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Moreover, Defendant fails to show, and we fail to see, how the legal definition varies
from its ordinary common sense definition.
273} To illustrate his point that the average juror could not decipher the meaning
of “market value” without a definition, Defendant highlights an exchange between
defense counsel and the district court where the attorney argued that the State failed
to prove “diminution in value” and the district court replied that the State provided
substantial evidence of “cost of repair.” However, we are not persuaded that this
exchange compels us to find that the jury could not use a common sense definition
of “market value” similar to UJI 14-1707. Given the fact that the jury was provided
with all the essential elements of arson, and given that “market value” is merely a
definitional instruction for a term with a common meaning, we conclude that the
failure to give UJI 14-1707 did not constitute fundamental error.
B. Failure to Instruct on Elements of Aggravated Stalking
28} Consistent with UJI 14-2404, the court instructed the jury, in relevant part,
For you to find [D]efendant guilty of retaliation against a witness as
charged in Count 1, the state must prove to your satisfaction beyond a
reasonable doubt . . . [that he] engaged in the conduct with the intent to
retaliate against [Ms.] Egeler for providing information to a law

enforcement officer relating to the commission or possible commission
of aggravated stalking or a violation of conditions of probation[.]

? Indeed, this confusion may have stemmed from the potential discrepancy between
the arson statute and the UJI, as discussed above. Compare § 30-17-5, with UJI 14-
1701.

Defendant argues that the failure to provide the jury with the elements of aggravated
stalking was fundamental error. In support of his argument, Defendant points to UJI
14-2404 use note 2, which instructs, “Unless the court has instructed on the essential
elements of the felony or attempted felony, these elements must be given in a
separate instruction, generally worded as follows: ‘In New Mexico, the elements of
the crime of [the felony that the witness provided information to a law enforcement
officer regarding] are as follows: . . . (summarize elements of the felony)[.]’ ”
(emphasis omitted). However, besides highlighting use note 2’s mandatory
language, Defendant fails to specify how the jury was confused by the lack of a
separate instruction on the elements of aggravated stalking. As UJI 14-2404 makes
clear, the jury was not required to find that Defendant actually committed the
underlying felony, but rather that he engaged in conduct intending to retaliate against
the victim for providing information relating to the commission or possible
commission of a felony. Thus, the elements of the underlying felony or attempted
felony were not essential elements, and we find no fundamental error in failing to
provide them. See Barber, 2004-NMSC-019, J 20 (agreeing that in most cases “the
failure to instruct on a definition or amplification of an essential element, even when

called for in an official UJI Use Note, does not rise to the level of fundamental error.”

(Emphasis added.)).

Ill. Defendant Was Erroneously Sentenced For Conspiracy to Commit
Arson

29} Lastly, Defendant contends, and the State concedes, that he was erroneously
sentenced to three years for conspiracy to commit arson above the statutory
maximum. We agree. Section 30-17-5(E) provides, “Whoever commits arson when
the damage is over two thousand five hundred dollars ($2,500) but not more than
twenty thousand dollars ($20,000) is guilty of a third degree felony.” (Emphasis
added.) The conspiracy statute in turn provides that “if the highest crime conspired
to be committed is a third degree felony or a fourth degree felony, the person
committing such conspiracy is guilty of a fourth degree felony.” Section
30-28-2(B)(3). The sentencing authority provided in NMSA _ 1978,
§ 31-18-15(A)(13) (2009) indicates that the basic sentence for a fourth degree felony
is eighteen months imprisonment. Because Defendant was sentenced to three years,
a sentence beyond what is statutorily authorized, we remand to the district court for
re-sentencing for conspiracy to commit arson consistent with statutory authority. See
State v. Wyman, 2008-NMCA-113, 4 2, 144 N.M. 701, 191 P.3d 559 (“The power
of a trial court to sentence is derived exclusively from statute[.]’”).

CONCLUSION

30} For the foregoing reasons, we affirm Defendant’s convictions. We remand to
the district court for re-sentencing consistent with this opinion, and the entry of an

amended judgment and sentence.

—

313 ITISSO ORDERED.

WE CONCUR:

M. MONICA ZAMORA, Thich Judge

QUELINE R. MEDINA, Judge

January 28, 2019- State of New Mexico v. Robert Gene Chester, No. A-1-CA-34521

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