August 12, 2019- State of New Mexico v. Marcos Figueroa, No. A-1-CA-36391

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Corrections to this opinion not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______ _
3 Filing Date: AUGUST 12, 2019
4 	No. A-1-CA-36391
5 	STATE OF NEW MEXICO,
6 	Plaintiff-Appellee,
7 V.
8 MARCOS FIGUEROA,
9 	Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY
11 	Matthew G. Reynolds, District Judge
12 Hector H. Balderas, Attorney General
13 	Eran Shemuel Sharon, Assistant Attorney General
14 	Santa Fe, NM
15 	for Appellee
16 L. Helen Bennett, P.C.
17 L. Helen Bennett
18 Albuquerque, NM
19 for Appellant
Court of Appeals of New Mexico
Filed 8/12/2019 9:39 AM

1 	OPINION.
2 IVES, Judge.
3 	{t} 	A jury convicted Marcos Figueroa (Defendant) of two counts of criminal
4 sexual penetration of a minor (CSPM) in the second degree (CSPM-11) perpetrated
5 against a child between the ages of thirteen and eighteen through force or coercion
6 contrary to NMSA 1978, Section 30-9-ll(E)(l) (2009). On appeal, Defendant
7 argues that (1) the use of an inapplicable jury instruction was fundamental error; (2)
8 insufficient evidence supports his conviction; and (3) the district court incorrectly
9 credited only the portion of Defenda~t's pretrial release that he spent under house
10 	arrest towards his sentence. We reverse Defendant's convictions, remand for a new
11 	trial, and affirm the district court's order regarding credit for time spent on pretrial
12 ·release.
13 	BACKGROUND
14 	{2} 	The State charged Defendant by criminal information with four counts of
15 	CSPM-11 committed against his underage son, G.F., and two counts of CSPM-11
16 committed against his underage stepson, A.C. At trial, all of these charges were
17 dismissed save two-Counts 4 and 5, which related to G .F. and were identical except
18 	for the charged timeframe. They alleged:
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That between June 01, 2014[,] and July 01, 2014, [for Count 4, and
September 01, 2014, and October 7, 2014, for Count 5, D]efendant did
cause 	[G.F.] 	to 	engage 	in 	sexual 	intercourse/anal 	intercourse/
cunnilingus/fellatio, and [G.F.] 	was at least thirteen but less than

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eighteen years of age, a second degree felony for a sexual offense
against a child[.]
3 The amended information alleged that this conduct violated Section 30-9-ll(E)(l),
4 which proscribes CSPM perpetrated "by the use of force or coercion on a child
5 thirteen to eighteen years of age[.]"
6 {3} 	G.F. provided the only testimony at trial regarding the two incidents on which
7 	Counts 4 and 5 were based. The substance of his testimony was as follows:
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STATE:
G.F.:
STATE:
G.F.:
STATE:
G.F.:
STATE:
G.F.:
STATE:
G.F.:
[B]etween June 1 of 2014 and July 1 of 2014, what did
your father do to you when you say he molested you?
I woke up in the living room upstairs, I can't remember if
I was in the recliner with it opened and laying down or if
I had two of the recliners next to each other and I was
laying across that, but I was upstairs laying in those, and I
woke up, but he didn't know I did, to my pants pulled
down, and he was doing oral.
He was performing oral sex?
Yes.
When you say oral sex ... what was he doing exactly?
He had his mouth on my penis.
Did he ever know you woke up?
Not that I know.
And did he say anything about it?
No.
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1 	STATE: 	Had you ever told him "don't do that"?
2 	G.F.: 	No.
3 	STATE: 	Did he ever say anything to you when he did this?
4 	G.F.: 	He did not.
5 	STATE: 	Now, later that year, between September 1, 2014, and
6 	October 7[,] 2014, did your father also perform oral sex on
7 	you?
8 	G.F.: 	Yes.
9 	STATE: 	Tell me about what you remember about that incident.
10 	G.F.: 	I was downstairs in my room, in my bed, I was sleeping, I
11 	woke up, again my pants were down, and the same thing
12 	was happening, he was, oral sex.
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14 	STATE: 	Describe what he was doing when you say 'oral sex.'
15 	G.F.: 	He had his mouth over my penis.
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17 	STATE: 	Did he pull your pants back up when he was done?
18 	G.F. 	He did.
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20 	STATE: 	Do you remember what time of day it was?
21 	G.F.: 	It was nighttime; I was in bed, sleeping.
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1 G.F. testified that he was sixteen years old at the time of trial, making him either
2 thirteen or fourteen at the time this abuse occurred.
3 {4} 	The parties discussed jury instructions with the district court following the
4 close 	of evidence. 	The 	court expressed some confusion as to 	the 	applicable
5 instructions and noted that it had been presented with alternative theories of the case,
6 one of which involved the use of"physical force," see NMSA 1978, § 30-9-lO(A)(l)
7 (2005). In response, the State disavowed any reliance on a "physical force" theory
8 of CSPM-11. Instead, the prosecutor informed the court, the State's "theory of the
9 case [was] that Defendant, by reason of his relationship [with G.F.], was.able to
10 exercise undue influence over [G.F.] and used his position to coerce him to submit
11 	to the act." The prosecutor asserted that that theory was supported by the trial
12 evidence "because that's what the testimony [was,]" summarizing the 	State's
13 	position as "[t]he child woke up, [Defendant] was there, the child continued to lie
14 there because ... it was his dad doing it."
15 	{5} 	Defendant did not object to instructions based on a "position of authority"
16 theory, and the district court consequently instructed the jury on the elements of
17 "position of authority" CSPM-11. The jury found Defendant guilty of both counts
18 under the given instructions. Defendant appeals.
4

1 DISCUSSION
2 I. 	Fundamental Error Occurred Because the Jury Convicted Defendant
3 	Under an Invalid Legal Theory
4 	{6} 	Defendant contends that we must reverse his conviction because it was error
5 for the district court to instruct the jury on "position of authority" 	CSPM-11.
6 Defendant failed to preserve this claim of error at trial, and we therefore review only
7 for fundamental error. State v. Stevens, 2014-NMSC-Ol l,, 42,323 P.3d 901. Under
8 fundamental error review, we first determine "whether a reasonable juror would
9 have been confused or misdirected by the [given] instruction." State v. Benally,
10 2001-NMSC-033,, 12, 131 N.M. 258, 34 P.3d 1134 (internal quotation marks and
11 	citation omitted). Confusion or misdirection may result from instructions that are
12 "facially contradictory or ambiguous," as_ well as those that, "through·omission or
13 	misstatement, fail to provide the juror with an accurate rendition of the relevant law."
14 Id. "If . . . a reasonable juror would have been confused or misdirected, then we
15 	review the entire record, placing the jury instructions in the context of the individual
16 facts and circumstances of the case, to determine whether the defendant's conviction
17 was the result of a plain miscarriage of justice." State v. Candelaria, 2019-NMSC-
18 	004,, 31,434 P.3d 297 (internal quotation marks and citation omitted). To the extent
19 that our analysis involves issues of statutory interpretation, our review is d~ novo.
20 State v. Arvizo, 2018-NMSC-026,, 13, 417 P.3d 384.
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1 {7} 	The instructions the district court gave informed the jury that, "to find
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2 	[D]efendant guilty of criminal sexual pe.netration of a child [thirteen] to [eighteen]
3 by use of coercion by a person in a position of authority[,]" it had to find beyond a
4 reasonable doubt:
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[D]efendant caused [G.F.] to engage in fellatio;
[G.F.] 	was at least [thirteen] 	btit 	less than [eighteen] 	years
old;
[D]efendant was a person who by reason of his relationship
to [G.F.] was able to exercise undue influence over [G.F.] and
used his position of authority to coerce him to submit to the act;
This happened in New Mexico on or between June 1, 2014, and
July 1, 2014[, for Count 4, and on or between September 1, 2014,
and October 7, 2014, for Count 5].
14 These instructions were modelled on an inapplicable uniform jury instruction, UJI
15 	14-945 NMRA. Its use note states that the instruction "is only to be used in cases
16 based on crimes that occurred before the [Legislature's] 2007 amendment 	[of
17 	Section 3 0-9-11] ."
18 	{8} 	Before the amendment, Section 30-9-1 l(D)(l) (2003) classified as CSPM-11
19 all CSPM perpetrated "on a child thirteen to eighteen years of age when the
20 perpetrator is in a position of authority over the child and uses this authority to coerce
21 	the child to submit[.]" As of July 1, 2007, however, Section 30-9-11 no longer
22 contains any reference to "position of authority" CSPM. Instead, Section 30-9-
23 	11 (E)( 1) now provides that all .CSPM perpetrated "by the use of force or coercion
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1 on a child thirteen to eighteen years of age" is CSPM-II. Because the law in effect
2 at the time a criminal offense is committed is controlling, State v. Lucero, 2007-
3 NMSC-041, 114, 142 N.M. 102, 163 P.3d 489, the current version of Section 30-9-
4 	11 was the statute applicable to the charges Defendant faced, and the district court
5 erred by instructing the jury on "position of authority" CSPM-II.
6 {9} 	The State argues that we should not reverse because the given "position of
7 authority" instructions required the jury to find that Defendant "coerce[d]" G.F. and
8 therefore contained every essential element of "force or coercion" CSPM-II. We
9 disagree. 1 The plain language of our sex offense statutes and precedent interpreting
10 those statutes demonstrate that the given instructions would have confused or misled
11 	a reasonable juror because they omitted the essential element of "force or coercion"
12 and included the legally irrelevant elements of"position of authority" CSPM-11.
13 	{to} 	"[F]orce or coercion," as that phrase is used in Section 30-9-11, has five
14 alternative definitions:
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( 1) 	the use of physical force or physical violence;
(2) 	the use of threats to use physical violence or physical force
against the victim or another when the victim believes that there
is a present ability to execute the threats;
1 We reached the opposite conclusion in State v. Sarabia, No. 31,155, mem.
op., 2014 WL 5865104 (N.M. Ct. App. Oct. 6, 2014) (non-precedential). In that case,
we held that a given "position of authority" instruction contained the element of
"force or coercion" because the given instruction required the jury to find that the
defendant "coerced" the victim. Id. 11 30-31. We disapprove of that reasoning for
the reasons discussed in the text.
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(3) 	the use of threats, including threats of physical punishment,
kidnapping, extortion or retaliation directed against the victim or
another when the victim believes that there is an ability to
execute the threats;
(4) 	the perpetration of criminal sexual penetration or criminal sexual
contact when the perpetrator knows or has reason to know that
the victim is unconscious, asleep or otherwise physically helpless
or suffers 	from 	a mental 	condition that renders the victim
incapable of understanding the nature or consequences of the act;
or
( 5) 	the perpetration of criminal sexual penetration or criminal sexual
contact by a psychotherapist on his patient, with or without the
patient's consent, during the course of psychotherapy or within
a period of one year following the termination of psychotherapy.
15 	NMSA 1978, § 30-9-lO(A) (2005). These statutory definitions control; a jury may
16 only find "force or coercion" when the State proves one or more of them. The
17 ordinary meaning of "coerce" therefore has no bearing on whether CSPM has been
18 perpetrated through "force or coercion" insofar as it encompasses a range of cpnduct
19 broader than those definitions.
20 	{11} 	Moreover, "coerc[ion]" did not appear as an isolated element in the given
21 	instructions. Instead, those instructions informed the jury that it could convict
22 Defendant only if it found that he had committed the CSPM by "us[ing] his position
23 	of authority to coerce [G.F.] to submit to the [fellatio]." The word "coerc[ion]" in
24 that context has an entirely different meaning than "force or coercion":
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Coercion [under a "position of authority" theory] 	occurs when a
defendant occupies a position which enables that person to exercise
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undue influence over the victim and that influence [is] the means of
compelling submission to the contact. Such coercion might take many
forms but is less overtly threatening than physical force or threats.
Undue influence results from moral, social, or domestic force exerted
upon a party, so as to control the free action of his or her will.
6 State v. 	Gardner, 2003-NMCA-107, ,-r 22, 	134 N.M. 294, 76 P.3d 47 (internal
7 quotation marks and citations omitted, alteration and omission incorporated); see
8 Arvizo, 2018-NMSC-026, ,-r 21 ("A person in a position of authority does not have
9 to use threats or physical force to coerce a child to submit to sexual contact. A child
10 can be coerced through subtle social or domestic pressure on the part of the
11 	perpetrator[.]" (citation omitted)); see also UJI 14-945 comm. cmt. ("Only one
12 	instruction was prepared for this method of committing the crime of criminal sexual
13 	penetration because the term 'force or coercion' has no application.").2 None of the
14 statutory definitions ·set out in Section 30-9-10 permit a finding 	of "force or
15 	coercion" upon proof that a defendant has used "undue influence"-i.e. 	"moral,
16 	social, or domestic force[,]" Gardner, 2003-NMCA-107, ,-r 22 (internal quotation
17 marks and citation omitted)-to perpetrate CSPM, and the jury's finding here that
2 Both Gardner and Arvizo interpreted NMSA 1978, Section 30-9-13,, which
criminalizes sexual contact of a minor (CSCM), rather than Section 30-9-11, the	. 	.
CSPM statute. 	The language used for the "position 	of authority" 	method 	of
commission in the CSCM statute is substantively identical to the formulation of that
method as it existed in the CSPM statute prior to 2007. Compare§ 30-9-13(B)(2)(a),
(C)(2)(a) (2003), with§ 30-9-1 l(D)(l) (2003) ..
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1 Defendant "coerce[d]" G.F. thus cannot support Defendant's conviction for CSPM-
2 	IL
3 	{12} 	Because 	the 	given 	instructions 	would 	have 	confused 	or 	misdirected 	a
4 reasonable juror, we must determine whether Defendant's conviction was "the result
5 of a plain miscarriage of justice." Candelaria, 2019-NMSC-004, 1 31 	(internal
6 quotation marks and citation omitted). The State asserts that no miscarriage of justice
7 occurred because "the evidence that G.F. was asleep would ... have established the
8 essential element of force or coercion under the updated UJI." In essence, the State
9 contends that this Court should affirm Defendant's conviction for the nonexistent
10 crime of "position of authority" CSPM-II because the evidence at trial established
11 	one of the actual statutory definitions of "force or coercion"-"the perpetration of
12 criminal sexual penetration ... when the perpetrator knows or has reason to know
13 	that the victim is ... asleep[.]" Section 30-9-10(A)(4). We disagree.
14 {13} 	The doctrine of fundamental error requires us to reverse a criminal conviction
15 	when "an error implicate[ s] a fundamental unfairness within the system that would
16 undermine judicial integrity if left unchecked." State v. Barber, 2004-NMSC-019,
17 118, 135 N.M. 621, 92 P.3d 633 (internal quotation marks and citation omitted). It
18 	is fundamentally unfair, and thus per se fundamental error, to convict a criminal
19 defendant of a nonexistent crime, regardless of whether the evidence would have
20 been sufficient to prove a crime that the law does recognize. See Campos v. Bravo,
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1 2007-NMSC-021, ,r,r 19-21, 141 N.M. 801, 161 P.3d 846 (holding that a conviction
2 must be reversed when the jury returns a general verdict after being instructed on
3 alternative valid and invalid bases of conviction and the reviewing court cannot
4 conclude beyond a reasonable doubt that the jury chose the valid basis); State v.
5 Maestas, 2007-NMSC-001, ,r 9, 140 N.M. 836, 149 P.3d 933 ("It is fundamental
6 error to convict a defendant ofa crime that does not exist.").
7 	{14} 	A conviction for "position of authority" CSPM-11 based on conduct occurring
8 after the 2007 amendme.l).t of Section 3 0-9-11 is a legal nullity. We could not uphold
9 Defendant's conviction if the jury had returned a general verdict of guilty after being
10 	instructed on both "position of authority" CSPM and the "sleeping victim" method
11 	of committing CSPM-11 that the State now asserts was indisputably established. See
12 	Campos, 2007-NMSC-021, ,r 19. It would be absurd for us to do so where the only
13 	possible basis for the jury's verdict was legally inadequate. It was a miscarriage of
14 justice to convict Defendant of "position of authority" CSPM-11 because that crime
15 	did not exist at the time the CSPM at issue was alleged to have occurred. Defendant's
16 conviction was therefore "fundamentally unfair notwithstanding 	[his] 	apparent
17 guilt[,]" Barber, 2004-NMSC-019, ,r 17, and we must reverse his conviction.3
3 Defendant also asserts that fundamental error resulted from the given
instructions' omission of the element of unlawfulness. See generally§ 30-9-ll(A)
("Criminal sexual penetration is the unlawful and intentional causing of a person to
engage in ... fellatio[.]" (emphasis added)). That assertion lacks merit. Use Note 1
to UJI 	14-132 NMRA, the uniform instruction on the unlawfulness 	element,
11

1 {15} 	Moreover, we would be compelled to reverse even if our fundamental error
2 doctrine allowed us to conclude that the evidence and verdict indisputably establish
3 Defendant's guilt under the State's newly-discovered sleeping victim theory. 	The
4 constitutional guarantees of notice, N.M. Const. art. II,§ 14, and due process, U.S.
5 Const. amend. XIV, § 1; N.M. Const. art. II; § 18, both prohibit this Court from
6 affirming a criminal conviction under a legal theory different than that on which the
7 case was tried. An appellate court "cannot affirm a criminal conviction on the basis
8 of a theory not presented to the jury[.]" Chiarella v. United States, 445 U.S. 222,
9 236 (1980); accord McCormick v. 	United States, 500 U.S. 257, 270 n.8 (1991)
10 ("Appellate courts are not permitted to affirm convictions on any theory they please
11 	simply because the facts necessary to support the theory were presented to the
12 jury."); 	Cole v. 	Arkansas, 333 U.S. 	196, 201 	(1948) ("[l]t is certain that [the
13 	defendants] were not tried for or found guilty of [the charge under which the
14 appellate court upheld their conviction]. It is as much a violation of due process to
provides that the district court is to instruct the jury on unlawfulness only when "an
issue is raised as to the lawfulness of the defendant's act." There was no issue here.
In reaching its verdict, the jury found beyond a reasonable doubt that Defendant had
performed fellatio on his underage son. None of the evidence tended to show any
circumstance under which Defendant's actions could have been lawful, and we
cannot imagine any such circumstance. Omission of the unlawfulness element was
not fundamental error because there was no suggestion that the charged sex acts, "if
they occurred, were other than unlawful[.]" State v. Orosco, 1992-NMSC-006, 19,
113 N.M. 780, 833 P.2d 1146; see Stevens, 2014-NMSC-011, 146.
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1 send an accused to prison following conviction of a charge on which he was never
2 tried as it would be to convic(him upon a charge that was never made."); see, e.g.,
3 	Commonwealth 	v. 	Mills, 	764 N.E.2d 854, 	864-65_ 	(2002) (reversing a larceny
4 conviction where the jury had been instructed on the elements of traditional larceny
5 but the evidence at trial would have supported a conviction only on a theory of
6 larceny by false pretenses).
7 {16} 	The given instructions informed the jury that it could only find Defendant
8 guilty under a "position of authority" theory, and the jury did so. This Court cannot
9 retroactively alter the basis for that verdict, applying the evidence adduced under a
10 "position of authority" theory at trial to a "sleeping victim" theory that Defendant
11 	was not tried on and the jury never considered. See State v. Villa, 2004-NMSC-031,
12 ,r,r 12-13, 136 N.M. 367, 98 P.3d 1017 ("[G]iving [the d]efendant notice of the
13 	lesser-included offenses 	after conviction 	hardly provides 	[the d]efendant with
14 adequate notice of those charges. . . . [And e]ven if we were to conclude that [the
15 	d]efendant had adequate notice of lesser-.included offenses, we would still face the
16 problem of convicting [the d]efendant on appeal of a charge he did not in fact defend
17 at trial."); State v. Loveless, 1935-NMSC-023, 39 N.M. 142, 42 P.2d 211; cf State
18 	v. McGee, 2002-NMCA-090, ,r 18, 132 N.M. 537, 51 P.3d 1191 ("Adequate notice
19 	of charges is a principle precious to any system of ordered liberty which we will not
20 dilute with a harmless error review."); State v. Armijo, 1977-NMCA-070, ,r 24, 90
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1 N.M. 614, 566 P.2d 1152 (rejecting as "no more than speculation" the state's
2 argument "that the defense would not have been different if the defen[dant] had been
3 given notice"). The State chose to put Defendant on trial for a crime that did not
4 	exist when Defendant was alleged to have committed it. Now, it is bound by the
5 consequences of that choice: remand and, as discussed below, a new trial. Cf Villa,
6 2004-NMSC-031, 1 14 ("[Both the state and the defense] should be liable for the
7 risks of their respective trial strategies.").
8 II. 	Double Jeopardy Does Not Bar Retrial
9 	{17} 	Because Defendant's 	convictions 	must be 	reversed, 	we 	next 	determine
10 whether the State may retry Defendant for CSPM-II. Retrial is not barred if sufficient
11 	evidence was introduced at trial to support a conviction under the erroneous given
12 instructions. State v. Luna, 2018-NMCA-025, 12 7, _ 	P .3 d _, cert. denied, 2018-
13 	NMCERT-_(No. S-1-SC-36896, Mar. 16, 2018); State v. Rosaire, 1996-NMCA-
14 	115, 120, 123 N.M. 250, 939 P.2d 597. "[T]he test to determine the sufficiency of
15 	the evidence ... is whether substantial evidence of either a direct or circumstantial
16 nature exists to support a verdict of guilt beyond a reasonable doubt with respect to
17 every element essential to a conviction." State v. Sutphin, 1988-NMSC-031, 121,
18 	107 N.M. 126, 753 P.2d 1314. "[W]e must view the evidence in the light most
19 	favorable to the guilty verdict, indulging all reasonable inferences and resolving all
14

1 conflicts in the evidence in favor of the verdict." State v. Holt, 2016-NMSC-Ol 1,
2 120, 368 P.3d 409 (internal quotation marks and citation omitted).
3 	{18} 	There 	was 	substantial 	evidence 	of Defendant's 	guilt 	under 	the 	given
4 instructions. G.F. testified that Defendant had put "his mouth [on G.F.'s] penis"
5 within both relevant timeframes, during which G.F. was thirteen or fourteen years
6 old. The evidence established that Defendant wa:s G.F.'s father, placing him in a
7 position of authority over G.F. as a matter oflaw. 4 See§ 30-9-lO(E). From G.F.'s
8 testimony, the jury could reasonably have concluded (as the State posited) that G.F.
9 had been coerced into lying still while Defendant perpetrated the fellatio, a symptom
10 	of the undue influence that Defendant's position as G.F.'s father enabled him to
11 	exercise. Further, coercion in the "position of authority" context "can be inferred
12 	[from] a child's reluctance or fear to report the sexual [abuse]." Arvizo, 2018-
13 	NMSC-026, 1 21. At trial, G.F. indicated that he had initially been reluctant to
14 disclose what Defendant had done to him because he did not know how people
15 	would react and worried that people would "think about [him] differently" if he
4 While Defendant's status as G.F.'s father should technically be irrelevant to
our analysis because of the language of the erroneous instruction, neither party
disputes that Defendant occupied a position that enabled him to exercise: undue
influence over G.F., and an abundance of evidence would have allowed the jury to
reach that conclusion. We are satisfied that none of the "rare circumstances in which
a parent ... is not able to exercise authority over [his or her] child," State v. Erwin,
2016-NMCA-032, 1 9, 367 P.3d 905, are present here, and we therefore find it
unnecessary to discuss evidence pertinent to other positions of authority that the jury
may have found Defendant occupied.
15

1 disclosed the abuse. Based on this evidence, a reasonable jury could have found that
2 Defendant used his position of authority to coerce G.F. to submit to fellatio on both
3 charged occasions. Double jeopardy thus does not bar Defendant's retrial.
4 III.
5
6 	{19}
The 	District 	Court 	Correctly 	Calculated 	Presentence 	Confinement
Credit
Finally, we address Defendant's argument that he is entitled to additional days
7 of credit for time spent on conditions of pretrial release prior to his conviction.
8 Defendant was arrested and taken into custody on the charges at issue on May 7,
9 2015. He was released into his wife's custody and placed on house arrest on May
10 	29, 2015, on conditions of release that required him to wear an ankle monitor and
11 	enroll in an electronic monitoring program (EMP). On September 18, 2015, the
12 district court entered an order freeing Defendant from house arrest and leaving
13 	Defendant on conditions of release that required him:
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not to possess firearms or dangerous weapons;
not to possess or consume alcohol or enter liquor establishments;
not to possess or use any narcotic drugs without a valid prescription[;]
not to violate any federal, state[,] or local criminal law;
to notify the court of any change of address;
not to leave ... [the] State of New Mexico without prior permission of
the [c]ourt;
to maintain contact with [his] attorney;
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to avoid all contact with the alleged victim or anyone who [might]
testify in [the] case;
[to] submit to random UA (urine test[ s]) or breathalyzer test[ s], [as well
as those] by any law enforcement personnel with reasonable suspicion[;
and]
no[t to] driv[ e] a motor vehicle without a valid driver[']s license and
valid insurance.
8 The conditions further required Defendant to continue wearing an ankle monitor and
9 prohibited him from having "unsupervised contact with children under the age of
10 	[eighteen] except [for] his own."
11 	{20} 	On 	December 	4, 	2015, 	the 	district 	court 	agam 	modified 	Defendant's
12 conditions of release, adding two further conditions: (1) a curfew between the hours
13 	of 10 p.m. and 7 a.m. and (2) an order prohibiting Defendant from going onto the
14 	grounds of G.F.'s former school. Defendant remained on release subject to these
15 	conditions until he was convicted and remanded into custody on December 14, 2016.
16 	{21} 	Prior to sentencing, Defendant and the State submitted briefs with differing
17 calculations of presentence confinement credit. Defendant asserted that he was
18 	entitled to credit for 663 days, the entire time between his initial arrest and the date
19 	of his conviction. The State, on the other hand, asserted that Defendant was entitled
20 to credit for only 205 days, reflecting the time Defendant had spent incarcerated and,
21 	in accordance with State v. Guillen, 2001-NMCA-079,, 10, 130 N.M. 803, 32 P.3d
22 812, and State v. Duhon, 2005-NMCA-120, 138 N.M. 466, 122 P.3d 50, on house
17

1 arrest. The district court entered a judgment and sentence on April 14, 2017, that
2 credited Defendant with 205 days of presentence confinement and additional time
3 spent incarcerated prior to sentencing.
4 {22} 	Defendant asserts that the district court erred by failing to give him credit for
5 (1) the entire time following his release from house arrest on September 18, 2015,
6 until his conviction; or (2) the time between the district court's December 4, 2015,
7 modification of Defendant's conditions and his conviction. We disagree. Because
8 we conclude that the more onerous conditions of the December 4, 2015, order are
9 insufficiently 	restrictive 	to 	qualify 	for 	credit, 	we 	do 	not 	separately 	address
10 Defendant's claim that credit should apply from September 18, 2015.
11 	{23} 	NMSA 1978, Section 31-20-12 (1977) provides that "[a] person held in
12 official confinement on suspicion or charges of the commission of a felony shall,
13 	upon conviction of that or a lesser included offense, be given credit for the:period
14 spent in presentence confinement against any sentence finally imposed for that
15 	offense." See generally State v. Ramzy, 1982-NMCA-113,, 8, 98 N.M. 436, 649
16 P.2d 504 ("The language of the statute is mandatory."). Because we must interpret
17 	Section 	31-20-12 	to 	determine 	whether 	Defendant 	qualifies 	for 	presentence
18 	confinement credit, our review of the district court's calculation of credit is_ de novo.
19 State v. Romero, 2002-NMCA-106,, 6, 132 N.M. 745, 55 P.3d 441.
18

1 {24} 	In interpreting Section 31-20-12, we aim to provide "a clear guide that does
2 not require fact intensive inquiries into whether specific conditions of release subject
3 a defendant to jail-type confinement[,]" Guillen, 2001-NMCA-079, 1 6, without
4 "foreclos[ing] the exercise of reasonable flexibility by sentencing courts through the
5 adoption of too bright a line." State v. Fellhauer, 1997-NMCA-064, 1 16, 123 N.M.
6 476, 	943 	P.2d 	123. 	We 	determine 	whether Defendant 	was 	"held 	in 	official
7 confinement" by applying the two-pronged Fellhauer test:
8
9
10
11
12
13
14
15
Section 31-20-12 applies to time spent outside a jail, prison or other
adult or juvenile correctional facility when (1) a court has entered an
order releasing the defendant from a facility but has imposed limitations
on the defendant's freedom of movement, OR the defendant is in the
actual or constructive custody of state or local law enforcement or
correctional officers; and (2) the defendant is punishable for a crime of
escape 	if there 	is 	an 	unauthorized 	departure 	from 	the 	place 	of
confinement or other non-compliance with the court's order.
16 Fellhauer, 1997-NMCA-064, 117.
17 	{25} 	Defendant asserts, and the State does not dispute, that the second prong of
18 Fellhauer was met because Defendant would have been subject to a charge of escape
19 under NMSA 1978, Section 30-22-8.1 (1999), had he violated his conditions of
20 release. 5 So the only issue before us is whether Defendant was subject to "limitations
5 Section 30-22-8.1, enacted after Fellhauer was decided, criminalizes·escape
from "community custody release programs," including EMPs and "community
tracking program[s.]" See generally Duhon,2005-NMCA-120, 116-13 (holding that
the "escape charge" prong of the Fellhauer test had been satisfied because the
defendant was subject to prosecution for escape under Section 30-22-8.1 while on
19

1 on [his] freedom of movement" within the meaning of the first prong. We agree with
2 the State that Defendant's pretrial release did not satisfy that prong because the
3 conditions of his release were "[in]sufficiently restrictive." Guillen, 2001-NMCA-
4 079, 17.
5 	{26} 	Defendant relies on Guillen and the decision of the Court of Appeals of
6 Maryland in Dedo v. State, 680 A2d 464 (Md. 1996), to support his contention that
7 the conditions of his release following· the December 4, 2015, modification were
8 sufficiently restrictive to qualify for credit. In Guillen, we noted that Fellhauer had
9 approvingly cited Dedo and observed that it "appears that the defendant in Dedo was
10 not under total house arrest, but was subject to a curfew." 6 Guillen, 2001-NMCA-
11 	079, 1 10 (citing Dedo, 680 A.2d at 469-70). Defendant seizes on this observation
12 and asserts he is entitled to credit because the conditions of his release were
13 	"substantially the same" as the conditions at issue in Dedo. We disagree. Dedo is, of
14 course, not binding on this Court. Moreover, rathe;r than supporting Defendant's
house arrest pursuant to an EMP); State v. Martinez, 1998-NMCA-047, 1 8, 125
N.M. 83, 957 P.2d 68.
6 "[A]ppears" was an apt word choice. Although Dedo twice references a
provision in the defendant's home detention contract stating that "any unexcused or
unexplained absence during curfew hours [would] be considered an escape[,]" the
opinion never makes clear what those hours were and repeatedly refers :to the
defendant's "home detention." 	Dedo, 	680 A.2d at 466 (brackets and internal
quotation marks omitted). Fellhauer itself nowhere mentions the curfew provision,
alluding instead to the defendant's "home detention" in its discussion ofDedo. 1997-
NMCA-064, 1112-13.
20

1 proposed holding, 	Guillen indicates that time spent subject to a curfew is not
2 "official confinement" under our statute, regardless of participation in an EMP
3 program. 2001-NMCA-079, 19.
4 	{27} 	The defendant in Guillen had been released from jail subject to conditions that
5 required him to participate in an EMP and to "remain at his home at all times except
6 to attend alcohol counseling, work, or religious services." Id. 12 (internal quotation
7 marks omitted). On appeal, we framed the issue before us as "whether the ...
8 conditions of release were sufficiently restrictive" to satisfy the first prong of
9 Fellhauer. 	Guillen, 	2001-NMCA-079, 	17. 	Answering 	this 	question 	in 	the
10 affirmative, we relied on our statement in Fellhauer that a "release order modeled
11 	after [the forms found in] Rules 9-302 [NMRA] and 9-303 [NMRA at the time]
12 would normally not be sufficient to earn the credit." Guillen, 2001-NMCA-079, 19
13 	(quoting Fellhauer, 1997-NMCA-064, 118). Because one of the standard conditions
14 in those forms was a condition requiring a defendant "not to leave [the defendant's]
15 	residence between the hours of __ (p.m.) and __ (a.m.) without prior permission
16 	of the court[,]" we concluded "that a curfew, without more, is an insufficient
17 restriction on movement to entitle a defendant to presentence credit." 7 Id. 1. 9. We
7 Although Rules 9-302 and 9-303 have been amended since our decisions in
Fellhauer and Guillen-most notably in 2017, when amendments "completely
rewrote [both] form[s,]" as their annotations note-Rule 9-303 still contains a
virtually identical curfew provision.
21

1 reasoned, however, that "house arrest is substantially more onerous than a curfew[,]"
2 noting that the defendant had not been "allowed to leave home except for specified
3 events" and that the defendant's compliance with his conditions of release had been
4 continuously monitored by corrections officers. Id. We therefore held:
5
6
7
8
9
10
11
that any defendant charged with a felony who is released (1) under
conditions of house arrest that require the defendant to remain at home
except to attend specified events such as treatrpent, work, or school and
(2) pursuant to a community custody release program that holds the
defendant liable to a charge of escape under Section 30-22-8.1, is
entitled to presentence confinement credit for the time spent in the
program.
12 Id., 11.
13 	{28} 	Defendant contends that when "the freedom of movement of a presumptively
14 	innocent citizen is limited or curtailed in any way, upon threat of incarceration in the
15 	event of violation of terms or conditions, that should be sufficient to require credit
16 for time served in an electronic monitoring or community custody program." But
17 that contention cannot be reconciled with the reasoning 	of either 	Guillen 	or
18 Fellhauer itself.
19 	{29} 	When we decided Fellhauer, it was unclear whether house arrest could ever
20 qualify for presentence confinement credit. 1997-NMCA-064,, 2. The defendant
21 	there challenged the district court's denial of credit for time he had spent unde~ house
22 arrest on conditions of release that required hini to stay at home except for medical
23 	treatment and attorney visits, and his appeal thus squarely raised that issue. Id. After
22

1 concluding 	that 	there 	was 	no 	plain 	meanmg 	of "official 	confinement" 	that
2 determined whether house arrest would qualify, we turned to the text of similar
3 statutes and our case law interpreting Section 31-20..; 12, neither of which provided
4 "specific guidance" regarding the "extent" or "type 	of limitation 	of freedom
5 necessary to find confinement outside a place of incarceration." Fellhauer, 1997-
6 NMCA-064, 116-7. Moving on to the statute's purpose, we noted that Section 31-
7 20-12 was intended "to give some relief to persons who, because of an inability to
8 obtain bail, are held in custody." Fellhauer, 1997-NMCA-064, 18 (quoting State v.
9 Howard, 	1989-NMCA-029, 1 11, 108 N.M. 560, 775 P.2d 762). We found that
10 purpose "of little value" to our analysis, however, because the defendant was not "in
11 	jail" while on house arrest, and granting credit would thus have advanced Section
12 31-20-12's purpose "only to the extent that the lack of bail resulted in significantly
13 	more onerous conditions of release." Fellhauer, 1997-NMCA-064, 18. And that, we
14 reasoned, was the "basic question" raised by the defendant's appeal: "whether the
15 	conditions placed on [the d]efendant when he was 	... 	on house arrest were
16 sufficiently onerous to be deemed official confmement." Id. To answer that question,
17 we drew heavily on out-of-state cases analyzing comparable statutes. See id. 11 9-
18 	17. 	We 	noted 	that 	most 	out-of-state 	cases 	had 	"contrast[ed] 	the 	conditions
'
19 encountered by [a d]efendant in jail with the normal experience of house arrest or
20 home detention and conclude[ d] that the latter is simply not restrictive enough to
23

1 qualify for credit." Id. 1 11. On the other hand, those cases that had reached a
2 contrary 	decision 	had 	"undertake[ n] 	essentially 	the 	same 	analysis 	but 	. 	. 	.
3 conclude[ d] that . . . the conditions imposed were sufficiently onerous to earn the
4 credit." Id. 1 12. We found the latter category of cases persuasive in reaching our
5 holding. See id. 11 13, 17.
6 	{30} 	As its reasoning makes clear, Fellhauer based its formulation of its namesake
7 test on an assessment of when conditions of release become so restrictive as to
8 subject a defendant to conditions approaching those experienced by people who are
9 	incarcerated. Its first prong thus asks a similar question, rather than asking whether
10 a defendant has been subjected to a restriction on movement in the abstract sense as
11 	Defendant contends.
12 	{31} 	Viewed through that lens, the conditions of Defendant's release were an
13 	insufficient limitation on his freedom of movement for him to qualify for credit
14 under Fellhauer. Defendant was free to move throughout the state during non-
15 	curfew hours, answerable to no one for his whereabouts during that time; as long as
16 he stayed away from G.F.'s former school and returned to his residence by 10 p.m.,
17 he could go wherever he liked. Defendant did not have to ask the court or the staff
18 	of the EMP program for permission to leave his home. Nor was his freedom of
19 movement subject to the availability of a third-party custodian whose constant
20 supervision was a condition of Defendant's release. Cf State v. Frost, 2003-NMCA-
24

1 002,, 3, 133 N.M. 45, 60 P.3d 492 (stating that the defendant had been released on
2 conditions that required him to "reside with his daughter ... and be supervised by
3 either of his two daughters at all times"). And he was not restricted to specific
4 activities or events when he did leave.· Cf Guillen, 2001-NMCA-079,, 9 ("[T]he
5 defendant[ was] not allowed to leave home except for specified events[, and his]
6 compliance with the conditions of release [was] monitored by correctional officers
7 through [an EMP]."). While the condition that he remain in New Mexico and avoid
8 one location within the state may have been burdensome, such a condition is simply
9 not restrictive enough to qualify for credit. Confinement to the State of New Mexico
10 	is hardly comparable to the severe curtailment ofliberty experienced by people who
11 	are incarcerated.
12 	{32} 	Defendant argues that the conditions requiring him to avoid unsupervised
13 	contact with minors and to submit to random urinalysis weigh in favor of an award
14 	of credit. We disagree. Defendant's first argument is based on his assertion that the
15 	no-unsupervised-contact 	condition 	was 	"a 	significant 	imposition" 	because 	he
16 "owned a small business and pastored a church." Were we to assess Defendant's
17 conditions of release in light of his activities as a business owner and pastor, we
18 would be engaging in precisely the kind of "fact intensive inquir[y] into whether
19 	specific conditions of release subject a defendant to jail-type confinement" that we
20 have previously counseled against. Guillen, 2001-NMCA-079,, 6. Moreover, we
25

1 do not believe that a roving ban on contact with a class of or specific individuals of
2 this kind is a "limitation[] on the defendant's freedom of movement." Fellhauer,
3 1997-NMCA-064, ,r 17; cf id. (announcing the inquiry under the second prong, in
4 relevant part, as whether the defendant is "punishable for a crime of escape for
5 unauthorized departure from the place of confinement" (emphasis added)). As to
6 Defendant's second argument, we fail to see how the random urinalysis condition
7 restricted Defendant's freedom of movement even in combination with the other
8 conditions of release. The condition required only that Defendant "submit to random
9 [urinalysis] ... [or urinalysis] by any law enforcement personnel with reasonable
10 	suspicion." Defendant does not argue or cite any record evidence that suggests that
11 	the condition was applied in such a way that it constrained his movement~. This
12 Court is under no obligation to review an unsupported or undeveloped argument, see
13 Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ,r 15, 137 N.M. 339, 110 P.3d
14 	1076, and we decline to do so here.
15 	{33} 	We hold that a conventional curfew, 8 even when combined with other, de
16 minimis restrictions on a defendant's freedom of movement like a statewide travel
8 By "conventional," we mean a curfew as it is normally understood-a
requirement 	that 	the 	defendant 	stay 	within 	his 	residence 	or 	other 	place 	of
confinement within reasonable specified hours, usually at night.
26

1 condition,9 is insufficiently onerous to constitute a limitation on movement under
2 the first Fellhauer prong. The district court thus correctly determined that Defendant
3 was not entitled to credit for the time that he spent on conditions of release between
4 	September 18, 2015, and December 15, 2016.
5 	CONCLUSION
6 	{34} 	We reverse Defendant's convictions and remand for a new trial. 	We affirm
7 the district court's order regarding credit for time spent on pretrial release.
8 {35} 	IT IS SO ORDERED.
9
10 	ZACHAR
WE CONCUR:
9 We do not imply that a statewide travel restriction is a de minimis imposition
on a defendant's freedom of movement outside of the narrow context we are faced
with here. Our task is to determine. when limitations on movement are sufficiently
restrictive to come within the ambit of Section 31-20-12, an issue entirely unrelated
to the question of whether a district court should impose a statewide or similar travel
restriction in the first place.
27