August 13, 2015 – State of New Mexico v. Carlos Herrea, No. 33,255 consolidated with State of New Mexico v. Daniel Herrea, No. 33,078

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ August 13, 2015

NOS. 33,255 & 33,078 (Consolidated)
STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
CARLOS HERRERA,
Defendant-A ppellant.
Consolidated With
STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
DANIEL HERRERA,
Defendant-A ppellant.
APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Douglas R. Driggers, District Judge
Hector H. Balderas, Attomey General
Yvonne M. Chicoine, Assistant Attomey General

Santa Fe, NM

for Appellee

Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM
for Appellant Carlos Herrera
Jorge A. Alvarado, Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM
for Appellant Daniel Herrera

OPINION
BUSTAMANTE, Judge.
{1} 	In these consolidated cases, Defendants Carlos and Daniel Herrera, brothers,
appeal their convictions for kidnapping, aggravated assault, and conspiracy to commit
kidnapping. We affirm.
BACKGROUND
{2} 	Seventeen-year-old Samuel Brown (Brown) and his mother’s boyfriend, Joe
Azure (Azure), went to Defendant Carlos Herrera’s (Carlos) apartment to meet with
another person who would help Brown record Brown’s music. Defendant Daniel
Herrera (Daniel) was also at the apartment. Several other people were also present.
Brown and Azure sat at the kitchen counter to wait for the person with the recording
equipment. Within a few minutes, Carlos accused Azure and/or Brown of stealing
some of his cocaine. An argument ensued. Carlos left the kitchen briefly and returned
with Daniel, who picked up a kitchen knife. During the ensuing altercation, Daniel
held the knife at Brown’s throat. Carlos told Brown and Azure that they could not
leave the apartment until the cocaine was found and “yell[ed] and forc[ed] the door
shut as [Brown and Azure] were trying to open it.” Daniel told Brown that he was
going to kill Brown.

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{3} 	At some point, Carlos made a phone call and within minutes a third man
arrived. The parties refer to this man as “Zack.” Zack hit Azure over Azure’s left eye
with a weapon that Azure initially thought was “a sidearm that an officer would
carry.” Azure testified that later he concluded that the gun was “a BB gun or a pellet
gun,” but that he “felt [they] were still in danger[.]” Azure required stitches to close
the resulting injury. Then, while Zack brandished the gun, Carlos, Daniel, and Zack
told Brown and Azure to turn out their pockets, strip to their underwear, and sit on the
couch. Carlos, Daniel, and Zack searched Brown’s and Azure’s clothes for the cocaine
and removed the money and identification they found. They copied down the
information on Azure’s identification and kept Brown’s student identification card,
as well as Azure’s money. Brown testified that Carlos punched Azure repeatedly in
the face while Brown sat on the couch and Daniel held the knife to Brown’s throat.
Azure fell into unconsciousness. When he awoke, he and Brown were told to leave
and warned not to call the police. They picked up their clothes and left without putting
them on. Brown testified that he and Azure were at Carlos’s apartment for at least an
hour and a half.
{4} 	Carlos and Daniel were each indicted for two counts of kidnapping, two counts
of aggravated assault, and one count of conspiracy to commit kidnapping, one count
of armed robbery, and one count of aggravated battery. Carlos was also indicted for
one count of battery. After a jury trial, in which they were tried together, Carlos and

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Daniel were convicted of all charges except for aggravated battery and armed robbery.
DISCUSSION
{5} 	On appeal, Carlos and Daniel (collectively, Defendants) make the same three
arguments. First, they argue that the district court erred in denying their request for
a jury instruction on kidnapping based on State v. Trujillo, 2012-NMCA-112, 289
P.3d 238, cert. quashed, 2015-NMCERT-003, 346 P.3d 1163. Second, they argue that
the convictions for aggravated assault and kidnapping violate their right to be free
from double jeopardy. Finally, they argue that there was insufficient evidence to
support their convictions for kidnapping, aggravated assault, and conspiracy. Carlos
does not challenge his conviction for battery.
{6} 	As a preliminary matter, we first address the State’s contention that Defendants’
kidnapping jury instruction argument was not preserved, and therefore, “[t]his Court
is precluded from considering the question.” “Generally, to preserve error on a
[district] court’s refusal to give a tendered instruction, the [a]ppellant must tender a
legally correct statement of the law.” State v. Jernigan, 2006-NMSC-003, ¶ 10, 139
N.M. 1, 127 P.3d 537. “However, if the record reflects that the judge clearly
understood the type of instruction the [d]efendant wanted and understood the tendered
instruction needed to be modified to correctly state the law, then the issue is deemed
preserved for appellate review.” Id. Here, the district court heard argument from both

1The Uniform Jury Instruction (UJI) Committee has proposed revisions to the
UJI for kidnapping based in part on the Trujillo holding. See Proposed Revisions to
the 	Uniform 	Jury 	Instructions 	for 	Criminal 	Cases, 	available 	at
https://nmsupremecourt.nmcourts.gov/rules (see Proposal 51).
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parties on the requested instruction and took a recess to examine it and Trujillo. In
denying Defendants’ request, it ruled that “there [are] significant differences in the .
. . facts of [Trujillo] . . . and this case.” We conclude that Defendants’ argument was
sufficiently preserved in the district court for appellate review.
{7} 	However, Defendants failed to ensure that the requested instruction was
included in the record proper nor was the substance of the requested instruction read
into the trial record. “It is . . . the general rule that an appellate court will decline to
review claims of error regarding jury instructions if the instructions are not contained
in the record on appeal.” G & G Servs., Inc. v. Agora Syndicate, Inc., 2000-NMCA-
003, ¶ 17, 128 N.M. 434, 993 P.2d 751; cf. Trujillo v. Baldonado, 1980-NMCA-184,
¶¶ 3-4, 95 N.M. 321, 621 P.2d 1133 (considering the propriety of giving jury
instructions even though the instructions were not in the record because the
instructions given were the uniform jury instructions prescribed by rule). Although
they had an opportunity under Rule 12-209(C) NMRA to supplement the record,
Defendants failed to do so, even after the State pointed out the omission in its answer
brief. In the absence of the proposed instruction, any statements as to the propriety of
the district court’s denial would be speculative and akin to an advisory opinion. 1

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{8} 	In any case, we agree with the district court that the facts here are readily
distinguishable from those in Trujillo. In Trujillo, this Court held that “the Legislature
did not intend to punish as kidnapping restraint or movement that is merely incidental
to another crime.” 2012-NMCA-112, ¶ 1. There, the defendant restrained the victim
during a two- to four-minute fistfight. Id. ¶ 3. We concluded that the defendant’s
kidnapping conviction must be vacated, stating that, “the factual circumstances of
[that] case . . . allowed us to determine as a matter of law that the Legislature did not
intend [the d]efendant’s conduct to constitute kidnapping.” Id. ¶ 42. We also observed
that the facts there did “not present a ‘close call.’ ” Id. ¶ 39.
{9} 	Here, Brown testified that Carlos told him and Azure that they could not leave
until the cocaine was found and that Carlos prevented them from opening the door to
the apartment as they tried to leave. In addition, Brown testified that he and Azure
were prevented from leaving the apartment for between one and a half and two hours.
Such a prolonged period of restraint is simply not incidental to or inherent in
aggravated assault under any of the tests described in Trujillo. See id. (applying three
tests for kidnapping to the facts in that case). The facts here thus do not present “[a]
more complicated factual scenario” that must be submitted to the jury. See id. ¶ 42.
{10} 	Defendants’ remaining arguments are, for the most part, a variation on their
first. Defendants argue in essence that there is insufficient evidence to support the
kidnapping and aggravated assault convictions because either (1) there is no evidence

2The jury was instructed that each Defendant could be found guilty of a crime
even if he did not commit the acts necessary for the crime if “[t]he defendant intended
that the crime be committed[,] . . . [t]he crime was committed[, and] . . . [t]he
defendant helped, encouraged[,] or caused the crime to be committed.” UJI 14-2822
NMRA. Thus, although only Daniel wielded the knife, it is possible the jury found
Carlos guilty of the charges related to the knife or found Daniel guilty of charges
based on Carlos’s conduct, based on an accessory theory. See State v. Bahney, 2012-
NMCA-039, ¶ 27, 274 P.3d 134 (“[A] person who aids or abets in the commission of
a crime is equally culpable and faces the same punishment as a principal.” (internal
quotation marks and citation omitted)). It is not clear whether the jury so found.
Neither Carlos nor Daniel makes an argument based on accessory liability.
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of the force required for kidnapping beyond that which forms the basis for aggravated
assault, or (2) there is insufficient evidence of the use of a deadly weapon required for
aggravated assault beyond that which forms the basis for kidnapping. They argue,
“Either way, whether the restraint was incidental to the assault, or if the assaults were
done in furtherance of the kidnapping, the evidence at most supports only one theory
or the other, and thus, can only sustain one conviction or the other.”2 Similarly,
Defendants argue that the conduct underlying the kidnapping and aggravated assault
convictions was “unitary [because] the same continuous struggle gave rise to the
aggravated assault and kidnapping convictions.” They maintain that the Legislature
did not intend to impose multiple punishments for kidnapping and aggravated assault
based on unitary conduct and that, therefore their convictions violate their right to be
free of double jeopardy. See U.S. Const. amends. V and XIV, § 1; N.M. Const. art. II,
§ 15; State v. Armijo, 2005-NMCA-010, ¶ 15, 136 N.M. 723, 104 P.3d 1114 (stating

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that in an analysis of double jeopardy, we ask “whether the conduct underlying the
offenses is unitary, i.e., whether the same conduct violates both statutes” and then, if
the conduct is unitary, “whether the [L]egislature intended to impose multiple
punishments for the unitary conduct” (internal quotation marks and citation omitted)).
{11} 	We address these two arguments together because their resolution depends on
the same analysis: whether there is sufficient evidence of independent factual bases
for each conviction. “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, ¶ 30, 278 P.3d 532 (internal quotation marks and
citation omitted). In reviewing the evidence, “we resolve all disputed facts in favor of
the [s]tate, indulge all reasonable inferences in support of the verdict, and disregard
all evidence and inferences to the contrary.” Id. (internal quotation marks and citation
omitted). Likewise, when reviewing whether conduct is unitary in the double jeopardy
context, we “indulge in all presumptions in favor of the verdict.” State v. Urioste,
2011-NMCA-121, ¶ 19, 267 P.3d 820 (internal quotation marks and citation omitted).
{12} 	The jury was instructed that, in order to convict Defendants for kidnapping, it
must find that “[Defendants] restrained or confined [Brown and Azure] by force,
intimidation[,] deception; [and Defendants] intended to hold [Brown and Azure]
against [their] will[] to inflict physical injury or for the purpose of making the

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victim[s] do something or . . . keeping the victim[s] from doing something[.]” See UJI
14-403 NMRA; NMSA 1978, § 30-4-1 (2003). “The crime of kidnapping is complete
when the defendant, with the requisite intent, restrains the victim, even though the
restraint continues through the commission of a separate crime.” State v. Dominguez,
2014-NMCA-064, ¶ 10, 327 P.3d 1092, cert. denied, 2014-NMCERT-005, 326 P.3d
1111.
{13} 	The premise behind Defendants’ argument is that it was only the brandishing
and use of the knife that prevented Brown and Azure from leaving Carlos’s apartment.
They contend that “[t]he evidence at trial established that in order to recover
Carlos’[s] belongings, Daniel held the knife to Brown’s throat. That action, in essence,
also served to prevent Brown [and] Azure from leaving. ”But this premise ignores the
other evidence already discussed, to wit, that Carlos shouted at Brown and Azure, told
them they couldn’t leave until his property was found, and pushed the door shut when
they tried to open it. The jury could have found that kidnapping was complete, but
continuing, at that point. There was also testimony that Carlos and Daniel prevented
Brown and Azure from leaving the apartment for at least an hour and a half and that
they made Brown and Azure sit on the couch while they searched for the cocaine. This
testimony is sufficient to support the kidnapping verdicts.
{14} 	Moreover, the jury could reasonably have concluded that Brown and Azure
were confined in the apartment by force or intimidation when Carlos told Brown and

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Azure that they couldn’t leave, yelled at them, and closed the door when they tried to
leave, conduct that is independent of and distinct from Daniel’s wielding of the knife.
See Urioste, 2011-NMCA-121, ¶ 28 (holding that there was no unitary conduct where
“the jury could reasonably have inferred an independent factual basis for all three of
[the d]efendant’s convictions” and stating that “we do not second-guess the factual
conclusions of a jury”). Since the conduct underlying the two charges was not unitary,
our double jeopardy analysis is concluded. State v. Contreras, 2007-NMCA-045, ¶ 20,
141 N.M. 434, 156 P.3d 725 (“If the conduct is not unitary, then the inquiry is at an
end and there is no double jeopardy violation.” (internal quotation marks and citation
omitted)).
{15} 	As to aggravated assault, the jury was instructed that the following elements
must be met:
1. 	[Defendants] brandished a knife [or] held a knife to the
throat of . . . Brown;
2. 	[Defendants’] conduct caused [Brown or Azure] to believe
[Defendants were] about to intrude on [their] bodily integrity or personal
safety by touching or applying force to [them] in a rude, insolent[,] or
angry manner; [and]
3. 	A reasonable person in the same circumstances as [Brown
or Azure] would have had the same belief[.]
See UJI 14-305 NMRA; NMSA 1978, § 30-3-2(A) (1963). Brown and Azure testified
that, after Carlos retrieved him from another room in the apartment, Daniel held the

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knife at Brown’s throat. Brown testified that Daniel told Brown that he was going to
kill Brown. He further testified that Daniel held the knife at his throat while he was
sitting on the couch in his underwear and while Azure was being punched by Carlos.
Other than their argument that the factual basis for the aggravated assault conviction
is the same as that for the kidnapping convictions which we have already addressed,
Defendants argue only that there was no evidence that a reasonable person in Azure’s
position would feel threatened when Daniel held the knife to Brown’s throat. We
disagree. See State v. Arrendondo, 2012-NMSC-013, ¶ 14, 278 P.3d 517 (stating that
to convict for assault “the [prosecution’s] evidence must satisfy both a subjective and
an objective standard”). Azure testified that he and Carlos were “yelling back and
forth at each other” about the missing cocaine and that they continued arguing while
Daniel held the knife to Brown’s throat. He also testified that he was “maybe about
five, six feet” from Brown when Daniel first appeared with the knife and held it to
Brown’s throat. Brown testified that later Carlos punched Azure repeatedly in the face
while Brown sat on the couch and Daniel held the knife to Brown’s throat. These facts
alone, not to mention others already outlined, are sufficient to support the jury’s
finding that a reasonable person in either victim’s position would believe that his
bodily integrity was threatened by Daniel’s use of the knife. See State v. Phillips,
2000-NMCA-028, ¶ 14, 128 N.M. 777, 999 P.2d 421 (stating that “the jury was free

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to use [its] common sense to look through testimony and draw inferences from all the
surrounding circumstances” (internal quotation marks and citation omitted)).
{16} 	In summary, we conclude that Defendants’ convictions for kidnapping and
aggravated assault are (1) supported by the evidence and (2) based on independent
factual bases such that Defendants’ double jeopardy rights are not implicated.
{17} 	Finally, Defendants argue that there was insufficient evidence presented to
support their convictions for conspiracy to commit kidnapping. “Conspiracy consists
of knowingly combining with another for the purpose of committing a felony within
or without this state.” NMSA 1978, § 30-28-2(A) (1979). A conspiracy may be
formed by words or acts. UJI 14-2810(1) NMRA. “In order to be convicted of
conspiracy, the defendant must have the requisite intent to agree and the intent to
commit the offense that is the object of the conspiracy.” State v. Trujillo, 2002-
NMSC-005, ¶ 62, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citation
omitted). “The agreement need not be verbal, but may be shown to exist by acts [that]
demonstrate that the alleged co-conspirator knew of and participated in the scheme.”
Id. A conspiracy “may be established by circumstantial evidence.” Id.
{18} 	Here, Brown and Azure testified that after the argument started, Carlos went
into another room and returned with Daniel, who shortly thereafter picked up a knife
and held it to Brown’s throat. They testified that both Carlos and Daniel made them
strip to their underwear and sit on the couch. Finally, both Carlos and Daniel, along

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with Zack, searched Brown’s and Azure’s clothes for the cocaine and removed the
money and identification they found. Viewed in the light most favorable to the verdict,
this testimony supports an inference that Carlos and Daniel worked together to confine
Brown and Azure in the apartment. We conclude that the evidence is sufficient to
support the convictions for conspiracy to commit kidnapping.
CONCLUSION
{19} 	Because Defendants failed to include their requested jury instruction on
kidnapping in the record proper, we decline to address their arguments on that issue.
We conclude that there was sufficient evidence to support Defendants’ convictions for
kidnapping, aggravated assault, and conspiracy to commit kidnapping, and that none
of the convictions violates the prohibition against double jeopardy. We affirm all of
Defendants’ convictions.
{20} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
__________________________________
JONATHAN B. SUTIN, Judge
__________________________________

J. MILES HANISEE, Judge
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