A-1-CA-34419 | Omnilex

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Filed

Court of Appeals of New Mexico

12/13/2017 1

12:04 PM

Offige of the Clerk
Mnf24
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. “*Reynolds
Opinion Number:
Filing Date: December 13, 2017
NO. A-1-CA-34419
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CRYSTAL ORTIZ,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

Walter Hart, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM -

for Appellant

OPINION

FRENCH, Judge.

43 Defendant Crystal Ortiz appeals her convictions for great bodily harm by
vehicle (driving while intoxicated (DWI)), contrary to NMSA 1978, Section 66-8-
101(B), (C) (2004, amended 2016); aggravated battery (deadly weapon-vehicle),
contrary to NMSA 1978, Section 30-3-5(C) (1969); and aggravated DWI, contrary
to NMSA 1978, Section 66-8-102(A), (B) (2010, amended 2016). Defendant did not
appeal her conviction for leaving the scene of an accident (great bodily harm). On
appeal, Defendant argues that: (1) her convictions violate her right to be free from
double jeopardy, and (2) the district court erred in refusing to grant her duress defense
instructions. This case requires this Court to decide whether Defendant was entitled
to a duress instruction on great bodily harm by vehicle, aggravated battery, and the
strict liability crime of aggravated DWI. We hold that the duress instruction was
applicable to the facts of the case and should have been given for aggravated battery
(deadly weapon-vehicle) and great bodily harm by vehicle (DWI) based on
Defendant’s prima facie evidence. We affirm Defendant’s conviction for the strict
liability crime of aggravated DWI. Because we reverse Defendant’s appealed

convictions for aggravated battery (deadly weapon-vehicle) and great bodily harm by

vehicle (DWI) based on instructional error, we do not address Defendant’s double
jeopardy claim.

BACKGROUND

2} Prior to trial, Defendant alerted the district court that she intended to present
the affirmative defense of duress as she was forced to flee from Mr. Hughes (Victim)
fearing great bodily harm. Again, after the defense rested, Defendant and the State
discussed the duress defense with the district court. The district court denied
Defendant’s duress instructions the next day before closing arguments.

3} On appeal, Defendant challenges the district court’s denial of the duress
instruction for three of her convictions: great bodily harm by vehicle, aggravated
battery, and aggravated DWI. Defendant argues that the district court erred in denying
the duress instructions, claiming that she had presented a prima facie case for the
giving of the duress instructions and that a reasonable view of the evidence supported
her defense.

STANDARD OF REVIEW

{44 “The propriety of jury instructions given or denied is a mixed question of law
and fact” and is “reviewed de novo.” State v. Munoz, 1998-NMSC-041, 78, 126 N.M. -
371, 970 P.2d 143 (internal quotation marks and citations omitted). “When

considering a defendant’s requested instructions, we view the evidence in the light

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most favorable to the giving of the requested instruction.” State v. Wyatt B., 2015-
NMCA-110, 4 33, 359 P.3d 165, citing State v. Romero, 2005-NMCA-060, { 8, 137
N.M. 456, 112 P.3d 1113; see State v. Hill, 2001-NMCA-094, q5, 131 N.M. 195, 34
P.3d 139. Our Supreme Court has recognized that “[t]he duress defense is similar, in
this context, to other justification defenses,” such as necessity, coercion, or self-
defense. State v. Castrillo, 1991-NMSC-096, § 6, 112 N.M. 766, 819 P.2d 1324.

{5} “The defense of duress is a question for the jury.” Esquibel v. State, 1978-
NMSC-024, 4 9, 91 N.M. 498, 576 P.2d 1129, overruled on other grounds by State
v. Wilson, 1994-NMSC-009, § 6, 116 N.M. 793, 867 P.2d 1 175. “To warrant
submission to the jury of the defense of duress, a defendant must make a prima facie
showing that [she] was in fear of immediate and great bodily harm to [herself] ... and
that a reasonable person in [her] position would have acted the same way under the
circumstances.” Castrillo, 1991-NMSC-096, § 4 (emphasis added); see also State v.
Rios, 1999-NMCA-069, 4 7, 127 N.M. 334, 980 P.2d1 068. New Mexico courts have
“required the state to disprove such defenses beyond a reasonable doubt.” State v.
Lopez, 1990-NMCA-016, 4 9, 109 N.M. 578, 787 P.2d 1261.“[T]he district. court
must instruct on the defense [of duress] only if it is raised by the defendant and only
if, on the basis of the evidence at trial (whether offered by the state or by the

defendant), a reasonable juror could have a reasonable doubt arising from the

defense.” Id. “The test is not how the judge would weigh the [duress] evidence as a
fact]-]finder; the true test is whether any juror could be justified in having a
reasonable doubt about whether the accused acted [under duress].” State v. Guerra,
2012-NMSC-014, 4 14, 278 P.3d 1 031. “If any reasonable minds could differ, the
instruction should be given.” State v. Rudolfo, 2008-NMSC-036, § 27, 144.N.M. 305,
187 P.3d 170.

DISCUSSION

{6} Defendant argues that her trial testimony and evidence, when viewed in the
light most favorable to the giving of the requested instruction, was sufficient to
satisfy her burden in her prima facie case and create a reasonable doubt in the mind
of a juror, and therefore the duress instruction should have been given. We begin by
examining Defendant’s testimony at trial.

(7 Defendanttestified that she had a relationship with Victim several years before
the instant events. Victim had become a good friend of her father’s. Victim became
aggressive when he drank and ultimately, according to Defendant’s testimony, he
raped her three years earlier. Approximately three years later, she again became
friendly with Victim. During this three year hiatus in their relationship, Defendant’s
father and Victim remained good friends. On the night in question, Defendant and

Victim had been out drinking, along with Defendant’s father, and eventually ended

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up at Victim’s house. Defendant stated that she was intoxicated, and Victim drove her
car to his house.

433 Once at Victim’s house and without invitation, Victim stood over Defendant
and tried to kiss her and touch ‘her face. Defendant repeatedly told him to stop.
Defendant did not slap or push Victim. Before Defendant attempted to flee from the
house, the first time, Victim continued to physically touch Defendant and was “trying
to pull [her] into him.” Victim pulled a button off Defendant’s clothing and ripped her
shirt. When Defendant tried to leave Victim’s house, Victim got angry and threw a |
pillow, knocking over a tower of CDs.

993 At this time, Defendant realized that Victim still had her car keys. Victim
would not allow Defendant to call her father, grabbed Defendant’s phone from her,
and when Defendant tried to leave, Victim physically blocked the door. Once
Defendant was able to regain control of her keys and phone, Defendant made it out
the door and into her car. Defendant testified, “Well, my thought was to drive away
first and then to call [my father].” Defendant had started her vehicle before Victim
jumped in.

go} After Victim jumped into the vehicle, Defendant repeatedly ordered Victim out
of the vehicle but he would not leave. As Defendant started to drive home, Victim

was yelling and screaming at Defendant. At which point, Defendant again tried to call

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her father. When Victim grabbed the phone from Defendant, Victim also grabbed
Defendant’s hair, causing the car to jerk. As Victim grabbed Defendant’s hair and the
phone, Victim jumped out of the car and started to run around to the front of the car.
It was then that the car jumped the curb and hit a fence. Defendant believed that
Victim had jumped out of the car before Defendant’s car hit the fence. During
Defendant’s testimony, she stated that she accidentally swerved into Victim, as
Defendant did not know Victim was going to keep running forward. Defendant does
not dispute that she struck Victim.
1} Defendant argues that her testimony was sufficient to warrant the duress |
instruction, specifically UJI 14-5130 NMRA, for great bodily harm by vehicle and
aggravated battery. The three elements contained in the instruction are:

(1). the defendant committed the crime under threat,

(2) _ the defendant feared immediate [great] bodily harm to [herself] or
| others if [she] failed to commit the crime, and
(3) areasonable person in the defendant’s position would have acted
in the same way under the circumstances.

Rios, 1999-NMCA-069, ¥ 7; see UJI 14-5130.
412} Defendant argues that her testimony was also sufficient to warrant the duress
instruction for the strict liability crime of aggravated DWI, providing:

(1) | the defendant acted under unlawful and imminent threat of death

or serious bodily injury, .

(2) the defendant did not find [herself] in a position that compelled
[her] to violate the law due to [her] own recklessness,

—

ee)

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(3) [the defendant] had no reasonable legal alternative, and
(4) [the defendant’s] illegal conduct was directly caused by the threat
of harm.
Rios, 1999-NMCA-069, {| 25; see State v. Baca, 1992-NMSC-055, 4 19, 114 N.Mj]
668, 845 P.2d 762.
13}, The State argues that Defendant failed to present sufficient evidence on the
“immediacy” requirement and the “reasonableness” requirement of both instructions.

Therefore, the State asserts that Defendant was not entitled to the duress instruction. .

I. Great Bodily Harm by Vehicle (DWI) and Aggravated Battery (Deadly
Weapon-Vehicle)

4144 In Rudolfo, a case involving self-defense as justification, our Supreme Court
stated that the standard for fear of immediate great bodily harm is a subjective one
(immediate danger and actual fear from the perspective of Defendant) and the
standard for whether a reasonable person would have acted in the same way as
Defendant is an objective one (hypothetical behavior of a reasonable person under the
same circumstances). 2008-NMSC-036, f 17; see State v. Duncan, 1990-NMCA-063,
4 24, 113 N.M. 637, 830 P.2d 554 (same). The subjective fear of immediate great
bodily harm by a defendant depends on the circumstances of each case. See Esquibel,
1978-NMSC-024, 12. In Esquibel, the defendant escaped from prison some forty-
eight to seventy-two hours after the most recent threat of harm. Jd. Despite the

passage of time, our Supreme Court held that a reasonable juror could conclude that

the defendant subjectively feared immediate great bodily harm. Jd. “Under the
circumstances of [Esquibel], the passage of two to three days between threat and
escape does not suffice to remove the defense of duress from the consideration of the
jury.” Id. (emphasis added).

15} Here, Defendant testified that after returning to Victim’s house, Victim tried
to kiss her and touch her face. Despite being told to stop, Victim continued his
physical touching, pulled a button off her clothing and ripped her shirt. Having
managed to secure her car keys, Defendant testified that she was able to escape
Victim’s house and get to her car, whereupon Victim continued his pursuit and got
into the front passenger seat, refusing to leave. Once in the car, in what could only be
inferred by a reasonable juror from Defendant’s testimony as a continuation of the
assault, Victim continued to yell and scream at Defendant. Defendant testified that
Victim grabbed her hair, causing the car to jerk. Victim jumped out of the car and
started to run around to the front of the vehicle. Defendant admitted that she struck
Victim.

416} We conclude that Defendant made a prima facie showing of duress by
presenting evidence to establish that: (1) Defendant was previously raped by Victim
years earlier: (2) Defendant fled Victim’s home in reasonable fear of immediate

bodily harm—being raped by Victim again; (3) Victim’s continued conduct when he

immediately followed Defendant to her car and jumped into the vehicle, reasonably
continued Defendant’s fear of immediate bodily harm; and (4) Defendant’s continued
fear of immediate bodily harm remained even after Victim jumped out of Defendant’s
vehicle and began running around to the front because Victim was still in a position
to re-engage in his assaultive behavior. We conclude that a jury could also find that
an objectively reasonable person would have continued to try to get away from
Victim’s assaultive behavior and would have attempted to drive away from the scene
to escape further assaults by Victim once he exited Defendant’s car. Thus, Defendant
established both the subj ective ‘Immediacy” prong and the objective
“reasonableness” prong for a prima facie defense of duress and the district court
should have instructed the jury accordingly.“If the evidence supports a theory of the
case, a defendant is entitled to [an] instruction on that theory.” Castrillo, 1991-].
NMSC-096, { 4,

a7 Having concluded that Defendant was entitled to the duress instruction
pursuant to UJI 14-5130, we hold that the State was improperly relieved of its burden
of proof under the duress instruction. “The burden is on the state to prove beyond a

reasonable doubt that the defendant did not act under such reasonable fear.” UJI 14-

5130. A defendant is entitled to jury instructions on her theory of the case if there is

evidence to support the instruction. As a result, the failure to give such a duress

instruction—UJI 14-5130—for the charges of great bodily harm by vehicle and
aggravated battery was reversible error.

II. Aggravated DWI

418} Defendant argues that she was entitled to a Rios duress instruction for the crime
of aggravated DWI. “This Court has held that DWI is a strict liability offense.” Rios,
1999-NMCA-069, { 6. As noted above, our case law has altered the second and third
elements of the duress defense relative to a Strict liability crime. As a result, the
second-and third elements for a strict liability crime of DWI would be, “(2)
[Defendant] did not find [herself] in a position that compelled [her] to violate the law
due to [her] own recklessness, [and] (3) [Defendant] had no reasonable legal
alternative[.]” Id. § 25. Our Supreme Court in Baca teaches that use of the duress
defense in a strict liability crime may be tempered with a narrow exception, by
utilizing these two points in the instruction, “without vitiating the protectionary
purpose of the strict liability statute.” 1992-NMSC-055, {| 19. Without inclusion of
these two elements in a strict liability duress instruction, we see no other reasonable
manner in which to properly inform a jury of the evidentiary requirements placed
upon a defendant. “Jury instructions become the law of the case against which the
sufficiency of the evidence is to be measured.” State v. Smith, 1986-NMCA-089, § 7,

104 N.M. 729, 726 P.2d 883. Because aggravated DWI is a strict liability crime, we

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conclude that the Rios instruction would be the proper jury instruction for
Defendant’s duress defense as opposed to the unmodified UJI 14-5130. We now turn
to Defendant’s argument that her prima facie case legally entitled her to the modified
duress instruction for the strict liability crime of aggravated DWI.

4193 After returning to Victim’s house, Defendant testified that Victim stood over
her and tried to kiss her, touched her face, pulled Defendant into him, pulled a button
off her clothing, and ripped her shirt. When she attempted to leave Victim’s house,
Victim blocked the door. Victim prevented Defendant from calling her father. When
Defendant secured her keys, she fled to her car. Upon entering her car, Victim then
sprinted out to the car and forced his way into the right passenger seat, refused to
leave, and continued to yell and scream at Defendant.

720} The State responds that Defendant failed to address the reasonable legal
alternatives to her commission of the crime of aggravated DWI. According to the
State, the evidence established numerous legal alternatives to driving, including
whether Defendant could have: (1) called her father or the police; (2) asked Victim’s
roommate for assistance: (3) after Victim ceased blocking the door, left without her
phone or car keys; (4) gone to a neighbor’s house; or (5) after securing her phone and
car keys, simply walked out the door, gotten into her vehicle, locked the doors, and

then called for assistance. The State argues that, as aresult of these failures to address

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the evidence presented regarding reasonable legal alternatives available, Defendant
made the unreasonable decision to drive her vehicle upon exiting Victim’s home.
21} On cross-examination Defendant testified, “Well, my thought was to drive
away first and then to call [my father].” Defendant had started her vehicle before the
Victim had jumped in. The State also points out that on cross-examination of
Defendant relative to the issue of seeking assistance of Victim’s roommate,
Defendant testified that the roommate, “wasn’t somebody J really knew. I mean, I}
don’t know. I just wanted to get out of the house.” Thus, the State points out that
Defendant either failed to address the reasonable legal alternatives to driving that
were available as part of her prima facie case or she failed to dispute or rebut the
evidence presented by the State regarding the reasonable legal alternatives to driving
that were available to her. We therefore address whether Defendant, “failed to show
that [she] exhausted all legal alternatives to [her crime of aggravated DWI],” under | .
the facts of this case. Baca, 1992-NMSC-055, q 22.

22} In Castrillo, the series of events that led to the unreasonable illegal act of a
convicted felon purchasing a firearm occurred over a period of months. 1991-NMSC-
096, 7 2. The defendant could have called the police and therefore the defendant was
unreasonable in choosing an illegal alternative. Id. § 18. In Baca, a prisoner in the

penitentiary armed himself with a shank two days after being confronted by another

prisoner, without having informed a guard or requesting appropriate security
arrangements after the first confrontation. 1992-NMSC-055, § 22. In both cases, our
Supreme Court noted that “[t]he obvious response to threatened violence—especially
anebulous, potential, future violence—is not to resort to [criminal conduct].” Jd. 421
(internal quotation marks and citation omitted).

23} In Rios, this Court reviewed a DWI strict liability crime on facts more pertinent
to those in this appeal. 1999-NMCA-069, § 1. The defendant sought refuge in his
truck, and as the attack continued, the defendant started the vehicle and began to
drive out of the parking lot. Jd. 2. In examining whether the defendant acted under
an imminent threat of death or serious bodily injury and therefore had no reasonable
legal alternative to DWI, this Court concluded that the defendant had not met his
burden of establishing the objective element of reasonable legal alternative by
“Jumping behind the wheel of a vehicle and taking off.” Id. J§ 26-27 (internal
quotation marks omitted).

24; The defense of duress must be construed differently in the context of a strict
liability rime. “Specifically, the elements of immediacy and reasonableness must be
construed narrowly so that the high level of protection afforded by a statute

[implicating] strict liability is not vitiated.” Baca, 1992-NMSC-055, { 16. Itis against

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this juri sprudential framework that we analyze whether Defendant made a prima facie
showing of duress in a strict liability case such as the one before this Court.

25} Defendant maintains that the immediacy of Victim’s threats and her attendant
responses thereto were a reasonable legal alternative because Victim’s assaultive
behavior, both in Victim’s home and continuing into Defendant’s vehicle was
imminent, not nebulous, potential, or future in nature. We address the immediacy
issue first. Defendant argues that once she exited Victim’s home, and as soon as she
got into the vehicle, Victim rushed out to the vehicle and got in, which she claimed
left her no opportunity to lock the doors. We conclude that, viewing the evidence in}
the light most favorable to giving Defendant’s requested duress instruction, there was
sufficient evidence presented to support Defendant’s position that she was in
immediate fear of great bodily harm and this justified allowing the jury to assess the
immediacy of Defendant’s fear. Therefore, the subjective immediacy element of a
duress instruction was satisfied by Defendant’s evidence.

265 Wenowturn to the evidence regarding whether Defendant had no reasonable
legal alternative to driving away from Victim’s home. We conclude that the prima
facie evidence Defendant presented did not satisfy the objective third element of the
Rios instruction—no reasonable legal alternative—for receiving a duress instruction

to a strict liability crime. Rios, 1999-NMCA-069, § 25. Numerous legal non-driving

alternatives were presented by the State’s evidence showing that Defendant was not
required to drive away from Victim’s home in an intoxicated state. However,
Defendant testified that she had already made the decision that she intended to get out]
of Victim’s home, drive away in her vehicle, and then call her father. Her testimony
was, “Well, my thought was to drive away first and then to call [my father].”
Defendant also started her car before Victim ran over and jumped inside. Based upon
the evidence presented, the other legal alternatives were not even considered at the
time of the incident or factually overcome after being raised by the State at trial.
Thus, Defendant failed to objectively meet her initial burden for a duress
instruction—establishing that no other reasonable legal alternatives existed to driving
away from Victim’s home intoxicated. See Baca, 1992-NMSC-055, 422 (recognizing
the alternatives presented and affirming the district court’s ruling that the defendant
“failed to show that he exhausted all legal alternatives to his [strict liability criminal
offense]”). As a result, the district court did not err in refusing to give the modified
duress instruction for the strict liability charge of aggravated DWI.
CONCLUSION

27} Weaffirm Defendant’s convictions for aggravated DWI and leaving the scene |

of an accident (great bodily harm). We reverse Defendant’s convictions for great

bodily harm by vehicle and aggravated battery, and we remand these charges to the

district court for further proceedings and a new trial.

23} ITISSO ORDERED.

WE CONCUR:

shel doce

TIMOTHY A . GARCIA, Judge

JONATHAN B. SUTIN, Judge (specially concurring).

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SUTIN, Judge (specially concurring).
29} While I concur in the majority opinion, I have concerns that the opinion may not
fully handle some of the issues. I write separately in hopes that our Supreme Court will
take certiorari and address what appear to me to be problems inherent in duress
instruction cases. The case at hand is difficult conceptually, factually, and with regard
to rule applicability. It offers food for thought and cries out for a bit of clarity.
30} In considering whether to give a duress instruction, the district court must
determine whether, assuming the defendant is convicted of the crime charged, the
defendant has established a prima facie case that the commission of the crime occurred
out of duress—that is, that the defendant feared immediate great bodily harm if he did
not commit the crime and that a reasonable person would have acted in the same way
under the circumstances. Of course, the defendant who goes to trial does not and will
not admit having committed the crime. It is and must be a hypothetically committed
crime.
31} The only Uniform Jury Instruction on the duress defense, UJI 14-5130, reads in
part:

If the defendant feared immediate great bodily harm to himself or another

person if he did not commit the crime and if a reasonable person would

have acted in the same way under the circumstances, you must find the

defendant not guilty.

The state of the law presents some concerns.

32} First, there exist two different tests for giving the duress defense depending
upon whether the crime is or is not a strict liability crime. Non-strict liability crimes
require UJI 14-5130. Strict liability crimes require a different, court-created
instruction. Yet the committee commentary in UJI 14-5130 plainly states that this
instruction “applies to all crimes, other than homicide[.]” See Rios, 1999-NMCA-069,
q 25 (describing the four elements of a strict liability crime). A clear inconsistency.
33} Second, one test, if not the primary test, to be applied in deciding whether to
give UJI 14-5130 “is whether any juror could be justified in having a reasonable
doubt about whether the accused acted [under duress].” Guerra, 20 12-NMSC-014,
§ 14. That test nowhere appears in UJI 14-5130, and in the case before us, were the
test to be applied, given the facts one has to speculate as to what the result would be
not only with respect to each crime, but also as between the averavated DWI (strict
liability) and the two other crimes (not strict liability), given that the criminal activity
appears to have stemmed from Defendant’s fear and attempts to escape harm. There
is no easy distinction to be made.

34} Third, a general principle involving instructing the jury is that the district court
is to consider the evidence in a light most favorable to giving the instruction. Yet,

combined with the juror-reasonable-doubt test, one, again, would have to similarly

speculate as to what the results would be. Again, no easy rule application can be
made.

35} Fourth, a question exists as to the usefulness of attempting distinctions between
a “subjective” test involving fear and an “objective” test involving the reasonable
person and reasonable juror. Are these tests properly applied by a district court?
Does the subjective reasonableness test include whether, under the circumstances, no
“reasonable alternative” existed? Is it a test more properly applied by a jury after the
instruction is given? If the latter, how is the jury to be instructed on subjective and
objective? How is the court or jury to make an informed, rational decision as to the
emotional (fear) and the rational (alternative) under circumstances in which the
criminal activity, be it a strict liability crime or not, stems from a defendant’s
legitimate fear and attempts to escape?

36} Fifth, inregard to the defense as to Defendant’s driving into Victim in the case |
before us, it must be assumed, because of Defendant’s convictions, that she drove into
Victim intending to harm him. The oddity that hits one in the face is that the duress |
instruction issue here is meaningless without a conviction. If Defendant intended to
harm Victim and intentionally drove into him, what fact possibly exists to support a
prima facie showing of a right to the duress instruction—given that there can be no

question that Defendant had the alternative of driving away instead of intentionally

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driving into Victim. This type of analytic insight into the facts of the case together
with the majority opinion’s analysis indicate the complexity, conceptual difficulty,
and rule application problems that attend duress instruction cases.

37} Until the foregoing concerns about the analyses and tests to be applied in
duress cases are addressed and the job of the district and appellate courts made less
of a crapshoot, I have chosen to specially concur with the hope that our Supreme
Court takes on the issue. Although the record in this case might have been better

developed and the briefs better written, this case seems to me to be a good case in

JONATHAN B. SUTIN, Judge

which to do so.

December 13, 2017- State of New Mexico v. Crystal Ortiz, No. A-1-CA-34419

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