February 17, 2014 – State of New Mexico v. Jesus Oscar Dominguez, Nos. 31,975 & 32,546 (consolidated)

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: [FEBRUARY 17, 2014

NO. 31,975 & 32,546 (Consolidated)
STATE OF NEW MEXICO,
Plaintiff-A ppellant/Cross-A ppellee,
V.
JESUS OSCAR DOMINGUEZ,
Defendant: A ppellee/Cross-A ppellant,

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge

Gary K. King, Attomey General

Yvonne M. Chicoine, Assistant Attomey General
Santa Fe, NM

for A ppellant/Cross-A ppellee

Jorge A. Alvarado, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellee/Cross-A ppellant

OPINION
FRY, Judge.
{1} 	In this case, both Defendant and the State appeal following Defendant’s
convictions for kidnapping and second-degree criminal sexual penetration (CSP II).
Defendant argues that his convictions for kidnapping and CSP II violate double
jeopardy, that the State presented insufficient evidence for either conviction, and that
the prosecutor committed prosecutorial misconduct. Conversely, the State argues that
the district court erred when it modified Defendant’s conviction for first-degree
kidnapping to second-degree kidnapping because the jury was not given a special
verdict form asking them to find whether Defendant committed a sexual offense
against Victim. Finding none of Defendant’s contentions meritorious, we affirm his
convictions. 	However, we conclude that the district court erred in modifying
Defendant’s conviction and remand to reinstate Defendant’s conviction for first-
degree kidnapping.
BACKGROUND
{2} 	Victim was home alone asleep with her young daughter when she was awoken
by the sound of knocking and noticed a man outside her bedroom window. Victim
went to the front door to see who was there and was confronted by Defendant, who
asked whether her father-in-law or her husband were home. 	After Victim told him

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that neither was home, Defendant asked if she had a gas can he could borrow because
he had run out of gas. Defendant waited at the front door while Victim went to look
for the gas can. When Victim told Defendant that she did not have one, Defendant
then asked if he could use her restroom. Victim testified that although she did not
know Defendant, she allowed him into the home because she thought Defendant knew
her father-in-law.
{3} 	Defendant entered Victim’s home and went to the bathroom. When Defendant
emerged from the bathroom, he pulled a gun from the pocket of his hooded sweatshirt.
Defendant put the gun to Victim’s head and told her he planned to rape her.
Defendant further threatened to kill Victim’s daughter if she did not comply.
Defendant, however, agreed to Victim’s requests that he wear a condom and not rape
her in the living room because it was adjacent to the room where her daughter was
sleeping. While holding the gun to Victim’s head, Defendant then followed Victim
to the kitchen, where she retrieved a condom, and to a second bedroom, where he
vaginally raped Victim.
DISCUSSION
{4} 	We begin our analysis with Defendant’s contention that his convictions for
kidnapping and CSP II violate double jeopardy. 	Due to the similarity between
Defendant’s double jeopardy argument and his argument that there is insufficient

3
evidence to support his kidnapping conviction, our resolution of Defendant’s double
jeopardy argument is largely determinative of his insufficiency of the evidence
argument. 	Indeed, in the context of combined kidnapping and sexual offense
convictions, these two areas of law have generated considerable analytical overlap in
our case law. See, e.g., State v. Allen, 2000-NMSC-002, ¶¶ 62, 67, 128 N.M. 482, 994
P.2d 728 (incorporating double jeopardy principles into analysis of whether there was
sufficient evidence to convict the defendant of kidnapping where the defendant argued
that the force used in the kidnapping was the same force used in the attempted CSP).
We therefore consider these contentions together.
I. 	Double 	Jeopardy 	and 	the 	Independent 	Factual 	Basis 	to 	Support
Defendant’s Conviction for Kidnapping
A. 	Double Jeopardy
{5} 	The State charged Defendant with CSP II on the basis of his use of a gun during
the CSP. See NMSA 1978, § 30-9-11(E)(6) (2009) (stating that CSP II includes CSP
perpetrated “when the perpetrator is armed with a deadly weapon”). The State also
charged Defendant with kidnapping, and the jury was instructed that the elements of
kidnapping were Defendant’s taking, restraint, confinement, or transportation of
Victim “by force, intimidation[,] or deception” and Defendant’s intending to “hold
[Victim] against [her] will to inflict a sexual offense on [her].” Because CSP II by
definition includes “some force or restraint,” State v. Crain, 1997-NMCA-101, ¶ 21,

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124 N.M. 84, 946 P.2d 1095, Defendant argues that the force or restraint associated
with the CSP II is the same force or restraint associated with kidnapping. Thus, he
contends that his right to be free from double jeopardy was violated when he was
sentenced for both crimes.
{6} 	“The Fifth Amendment of the United States Constitution prohibits double
jeopardy and is made applicable to New Mexico by the Fourteenth Amendment.”
State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. This is a constitutional question
of law that we review de novo. Id.
{7} 	The double jeopardy clause provides three separate constitutional protections.
It provides protection from (1) “a second prosecution for the same offense after
acquittal[,]” (2) “a second prosecution for the same offense after conviction[,]” and
(3) “multiple punishments for the same offense.” State v. Montoya, 2011-NMCA-074,
¶ 29, 150 N.M. 415, 259 P.3d 820 (internal quotation marks and citation omitted).
Within the multiple punishment context—which is the analysis we are concerned with
in this case—there are two types of cases: (1) “unit-of-prosecution” cases, where the
defendant has been convicted of multiple violations of the same statute; and (2)
“double-description” cases, where the defendant has been convicted of violations of
multiple statutes for the same conduct. 	Swick, 2012-NMSC-018, ¶ 10. 	Because
Defendant argues that his convictions arise from the same conduct but under different

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statutes, this is a double-description case. We analyze double-description cases under
the two-part test set forth in Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810
P.2d 1223. Under Swafford, we first consider whether the conduct underlying the two
convictions was unitary. Only if we conclude that the conduct was unitary do we then
consider whether the Legislature intended to punish the two crimes separately. Swick,
2012-NMSC-018, ¶ 11.
{8} 	“Conduct is not unitary if sufficient indicia of distinctness separate the
transaction into several acts.” Montoya, 2011-NMCA-074, ¶ 31 (internal quotation
marks omitted). 	“Distinctness” can be established by “looking to the quality and
nature of the acts, the objects and results involved, and the defendant’s mens rea and
goals during each act.” State v. Saiz, 2008-NMSC-048, ¶ 30, 144 N.M. 663, 191 P.3d
521, abrogated on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M.
357, 210 P.3d 783.
{9} 	Relying on this Court’s decision in Montoya, Defendant argues that the
conduct supporting both convictions was unitary because the jury may have relied
upon the fact that Defendant used the same type of force—the gun—as the basis for
both convictions. Montoya, 2011-NMCA-074, ¶ 37 (“[U]nitary conduct occurs when
the state bases its theory of kidnap[p]ing on the same force used to commit CSP II . . .
even though there were alternative ways to charge the crime.”) In Montoya, the jury

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was given a general kidnapping instruction, although two factual bases—one in
violation of the defendant’s double jeopardy rights—supported the conviction. Id. ¶¶
38-39. We presumed the defendant’s conduct was unitary because we were unable
to determine from the record which of the alternative basis for the defendant’s
kidnapping charge was found by the jury to support the conviction. Id. ¶ 39; see State
v. Foster, 1999-NMSC-007, ¶ 2, 126 N.M. 646, 974 P.2d 140 (“Under these
circumstances, we must reverse a conviction if one of the alternative bases for the
conviction provided in the jury instructions is legally inadequate because it violates
a defendant’s constitutional right to be free from double jeopardy.”), abrogated on
other grounds by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683.
In analogizing to Montoya, Defendant argues that because we are unable to determine
whether his kidnapping conviction rested on his use of the gun to restrain Victim or
on his deceptive conduct in entering her home, we must presume that the jury relied
on a legally inadequate basis—the gun—for both the kidnapping and CSP II.
{10} 	Regardless of which alternative the jury relied on, we conclude that Defendant’s
conduct was not unitary because either alternative—kidnapping by deception or by
force—was factually distinct from the conduct supporting the CSP II conviction. See
State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (“The proper
analytical framework [for determining unitary conduct] is whether the facts presented

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at trial establish that the jury reasonably could have inferred independent factual bases
for the charged offenses.” (internal quotation marks and citation omitted)). 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. McGuire, 1990-NMSC-067, ¶ 10, 110 N.M. 304, 795 P.2d 996 (“Once
[the] defendant restrained the victim with the requisite intent to hold her for service
against her will, he had committed the crime of kidnapping, although the kidnapping
continued throughout the course of [the] defendant’s other crimes[.]”). “[T]he key to
finding the restraint element in kidnapping, separate from that involved in criminal
sexual penetration, is to determine the point at which the physical association between
the defendant and the victim was no longer voluntary.” State v. Jacobs, 2000-NMSC-
026, ¶ 24, 129 N.M. 448, 10 P.3d 127. 	Even assuming the factual basis for
Defendant’s kidnapping conviction was the use of the gun, the kidnapping was
complete, and therefore factually distinct, when Defendant, stating his intention to
rape Victim, pulled the gun from his clothing. 	See id. ¶ 25 (holding that crimes of
kidnapping and attempted CSP were factually distinct where “the . . . kidnapping was
complete before . . . the act of attempted criminal sexual penetration”); Montoya,
2011-NMCA-074, ¶ 31 (“Sufficient indicia of distinctness exist when one crime is
completed before another[.]” (internal quotation marks and citation omitted)). At this

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point, the association between Defendant and Victim was no longer voluntary, and it
was not until Defendant moved Victim to the back bedroom that he used the gun to
restrain her during the CSP. That Defendant used the same type of force to restrain
Victim during the kidnapping and during the CSP does not create unitary conduct out
of the independent and factually distinct bases for these crimes. 	See Allen, 2000-
NMSC-002, ¶ 70 (“[I]f there was a basis for the jury to find factually distinct bases
for kidnapping [and] attempted CSP, . . . then the conduct is considered non-
unitary.”).
{11} 	Because we conclude that Defendant’s conduct was not unitary, we do not
proceed to the second part of the Swafford analysis. Being non-unitary, Defendant’s
convictions do not violate double jeopardy.
B. 	Sufficiency of the Evidence for Kidnapping
{12} 	For these same reasons, we reject Defendant’s contention that the force used to
convict Defendant of kidnapping was incidental to the CSP II. See State v. Trujillo,
2012-NMCA-112, ¶ 39, 289 P.3d 238 (concluding that evidence of a restraint
incidental to an aggravated battery was insufficient to support a conviction for
kidnapping), cert. granted, 2012-NMCERT-011, 297 P.3d 1227. We emphasize that
it is not the same type of force that is material to the determination of whether the
restraint supporting the kidnapping conviction was incidental to the separate crime.

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Instead, we must determine whether the force used during the other crime, in this case
CSP II, is the only evidence of force supporting both the kidnapping conviction and
the separate offense. 	Montoya, 2011-NMCA-074, ¶ 38 (“[B]ecause some force or
restraint is involved in every sexual penetration without consent, kidnap[p]ing cannot
be charged out of every CSP without a showing of force or restraint separate from the
CSP.”); State v. Pisio, 1994-NMCA-152, ¶ 38, 119 N.M. 252, 889 P.2d 860 (“[F]orce
or coercion exerted prior to the [sexual offense] itself will support a conviction for
kidnapping[.]”). As we concluded above, there was evidence of independent uses of
force and intimidation before the CSP that supported Defendant’s kidnapping
conviction. 	See Allen, 2000-NMSC-002, ¶ 67 (“When there is evidence that the
perpetrator forcibly abducted the victim before attempting sexual penetration or
continued to use force or restraint after the sex act was completed, . . . we have
rejected the proposition that the kidnapping is indistinguishable from the sex
offense.”). Under no reading of Trujillo would Defendant’s force and intimidation in
effectuating the initial restraint supporting the kidnapping conviction be considered
“merely incidental” to the CSP II as a matter of law, see 2012-NMCA-112, ¶ 6, nor
was it the type of force “necessarily involved” in every CSP. 	Id. ¶ 21; see State v.
Corneau, 1989-NMCA-040, ¶ 11, 109 N.M. 81, 781 P.2d 1159 (concluding that
“[e]vidence exist[ed] in the record to support a finding by the jury that the underlying

10
felony of false imprisonment was separate and apart from any false imprisonment
necessarily involved in almost every act of CSP”). We thus conclude that there was
sufficient evidence of force and intimidation, independent of the force used during the
CSP, to support Defendant’s kidnapping conviction.
II. 	Modification of Defendant’s Conviction
{13} 	The uniform jury instructions necessary to convict a defendant of first-degree
kidnapping are split into two instructions. See UJI 14-403 NMRA Use Note 1 (stating
that where first-degree kidnapping is in issue, UJI 14-6018 NMRA must also be
given). UJI 14-403 contains the essential elements of the offense, while UJI 14-6018
contains specific interrogatories asking whether the jury finds that the defendant did
not voluntarily free the victim or whether the defendant inflicted physical harm or
committed a sexual offense upon the victim. 	If the jury answers any of these
questions in the affirmative—assuming it also found the essential elements were
met—the defendant is guilty of first degree kidnapping. See UJI 14-6018 Use Note
1 (“The defendant may be found guilty of first degree kidnapping if the jury answers
any or all of the above questions, ‘yes.’ If none of the questions is answered ‘yes,’ the
defendant is guilty of second degree kidnapping.”).
{14} 	Following Defendant’s convictions for CSP II and kidnapping, the district court
initially orally sentenced Defendant to eighteen years for first-degree kidnapping. See

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NMSA 1978, § 31-18-15(A)(3) (2007) (providing for eighteen-year sentences for
first-degree felonies). 	Defendant refused to approve the judgment and sentencing
order and instead filed a motion to quash the sentence. Defendant argued that because
the jury had not been given the kidnapping special verdict form, the kidnapping jury
instruction submitted to the jury was only sufficient to convict him of second-degree
kidnapping. See UJI 14-403 (kidnapping essential elements jury instruction); UJI 14-
6018 (special verdict form for kidnapping). The district court ultimately agreed with
Defendant and concluded that the special verdict form is mandatory in all first-degree
kidnapping cases. State v. Gallegos, 2009-NMSC-017, ¶¶ 17-18, 146 N.M. 88, 206
P.3d 993. 	The court therefore reduced Defendant’s conviction to second-degree
kidnapping because the jury did not find, pursuant to the special verdict form, that
Defendant committed a sexual offense against Victim.
{15} 	On appeal, the State’s argument is two-fold. First, the State argues that to the
extent the special verdict form required the jury to find that Defendant committed a
sexual offense against Victim in order to convict him of first-degree kidnapping, the
special verdict form is in conflict with our kidnapping statute. 	Second, the State
argues that because the jury independently found Defendant guilty of CSP II, they had
necessarily found the facts needed to convict Defendant of first-degree kidnapping
regardless of the omission of the special verdict form. 	We agree with the State’s

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second contention that it was error for the district court to modify Defendant’s
conviction because the jury specifically found that Defendant committed a sexual
offense against Victim. 	We therefore reverse the district court’s modification of
Defendant’s sentence.
{16} 	Our kidnapping statute defines kidnapping as “the unlawful taking, restraining,
transporting or confining of a person, by force, intimidation or deception, with intent
. . . to inflict . . . a sexual offense on the victim.” NMSA 1978, § 30-4-1(A)(4) (2003).
Subsection B states that “[w]hoever commits kidnapping is guilty of a first[-] degree
felony, except that he is guilty of a second[-]degree felony when he . . . does not inflict
. . . a sexual offense upon the victim.” Section 30-4-1(B). The kidnapping essential
elements uniform jury instruction substantially tracks the elements that the kidnapping
statute defines as a first-degree kidnapping. See UJI 14-403. Thus, it would appear
that where the jury in this case found that Defendant restrained Victim by force or
deception with the intent to inflict a sexual offense upon her, Defendant was found
guilty of first-degree kidnapping. 	It would also stand to reason, based on our
kidnapping statute as written, that only if the jury found that Defendant did not

1More specifically, the jury would have to find that Defendant did not release
Victim in a safe place and did not commit the sexual offense or otherwise physically
harm Victim. Section 30-4-1(B).
2Arguably, the committee commentary is intended to mean that where the
victim was freed without great bodily harm having been inflicted, this instruction
should serve as the jury instruction for second-degree kidnapping.
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actually commit the intended sexual offense could his offense constitute second-
degree kidnapping.1
{17} 	Nevertheless, we must take into account the UJI use notes and recent statements
by our Supreme Court. UJI 14-403 requires that UJI 14-6018 also be given where
first-degree kidnapping is in issue. UJI 14-403 (stating in Use Note 1 that “[i]f first[-
]degree kidnapping is an issue, Instruction 14-6018 NMRA is also given); State v.
Barber, 2004-NMSC-019, ¶ 10 n.1, 135 N.M. 621, 92 P.3d 633 (recognizing that use
notes are binding authority). Similarly, Use Note 1 of 14-6018 requires the instruction
to “be used if there is an issue . . . as to whether the defendant committed a sexual
offense upon the victim.” The committee commentary to UJI 14-403, which, unlike
use notes, is not binding authority, further states that “[t]his instruction is for the crime
of second[-]degree felony kidnapping where the victim is freed without great bodily
harm having been inflicted.”2 See Barber, 2004-NMSC-

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019, ¶ 10 n.1 (stating that committee commentaries are not binding authority). Our
Supreme Court has relied on this language, albeit in dicta, to conclude that the
elements in UJI 14-403 only “establish the offense of second-degree kidnapping.”
Gallegos, 2009-NMSC-017, ¶ 13; see UJI 14-6018 Use Note 1 (stating that if the jury
answers no to the question of whether the defendant committed a sexual offense upon
the victim, in addition to other interrogatories, “the defendant is guilty of second[-]
degree kidnapping”). Given that use notes constitute binding authority and that our
Supreme Court has indicated that a conviction under the elements of UJI 14-403 only
establishes a second-degree kidnapping, we understand the district court’s reluctance
to adjudicate Defendant guilty of first-degree kidnapping in the absence of specific
findings by the jury that Defendant committed a sexual offense against Victim
pursuant to the special verdict form. See UJI 14-6018.
{18} 	While we understand the importance of providing mandatory uniform jury
instructions, see UJI-Criminal, General Use Note (stating that “[w]hen a uniform
instruction is provided for the elements of a crime, a defense or a general explanatory
instruction on evidence or trial procedure, the uniform instruction must be used
without substantive modification or substitution”), we cannot conclude that failure to
give a mandatory instruction automatically results in reversal or modification of an
otherwise valid conviction. Indeed, our Supreme Court has recognized before that the

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failure to give a jury instruction, described as mandatory by the use note, does not
automatically require reversal. State v. Doe, 1983-NMSC-096, ¶ 10, 100 N.M. 481,
672 P.2d 654 (“We hold that the failure to give [the jury instruction] does not
automatically require reversal solely because the [u]se [n]ote provides that it must be
given[.]”). Instead, it is the failure to give a mandatory instruction on the law essential
for a conviction that constitutes reversible error. 	See id. ¶ 6; State v. Otto, 1982-
NMCA-149, ¶ 6, 98 N.M. 734, 652 P.2d 756. In these circumstances, we look to the
jury instructions as a whole to determine whether the jury was properly instructed on
the elements of the crime. See Doe, 1983-NMSC-096, ¶ 10.
{19} 	As we discussed above, in order to convict Defendant of kidnapping, the jury
was required to find that Defendant (1) took, restrained, confined, or transported
Victim, (2) by force, intimidation, or deception, and (3) with the intention to inflict a
sexual offense on her. 	See UJI 14-403. 	For CSP II, the jury was asked whether
Defendant caused Victim to engage in sexual intercourse while armed with a firearm.
Neither party disputes that the jury was properly instructed on the essential elements
of these offenses and returned affirmative findings. However, in order to convict of
first-degree kidnapping, according to the special verdict form, the jury was required
to further find that Defendant committed a sexual offense upon Victim. See UJI 14-
6018 (Question 3) (“Do you unanimously find beyond a reasonable doubt that the

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defendant committed a sexual offense upon [the victim]?”). 	Here, the jury
unquestionably found beyond a reasonable doubt that Defendant committed a sexual
offense against Victim when it returned a guilty verdict on CSP II. This is all that is
required under UJI 14-6018 to establish first-degree kidnapping. 	See UJI 14-6018
Use Note 1 (“Kidnapping is a second[-]degree offense unless the state meets its
burden under Section 30-4-1(B) of proving that the defendant . . . [inflicted] a sexual
offense upon the victim.”). 	Therefore, because the jury instructions as a whole
properly instructed the jury on the essential elements of first-degree kidnapping and
the jury found Defendant guilty of kidnapping and CSP II, the district court erred in
modifying Defendant’s conviction. See State v. Torrez, 2013-NMSC-034, ¶ 10, 305
P.3d 944 (“[A] district court has a mandatory duty to enter a judgment and sentence
consistent with the jury’s verdict.”).
III. 	Prosecutorial Misconduct
{20} 	Defendant argues that he was deprived of a fair trial due to prosecutorial
misconduct. 	Defendant’s contentions can be grouped into two categories: (1) that
during closing argument the prosecutor vouched for the credibility of Victim’s
testimony and, both explicitly and by inference, argued that Defendant was lying; and
(2) that the prosecutor made inappropriate references to the CODIS system, thereby

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indicating that Defendant may have had prior convictions. We address these issues
in turn.
A. 	Closing Argument
{21} 	Defendant points to what he contends are multiple instances of improper
statements by the prosecutor during closing argument. After the prosecutor stated that
it was the jury’s duty to determine the credibility of witnesses, the prosecutor stated
that she would point out indicators that would help the jury decide that “[Victim] is
not lying to you, and she’s telling you the truth about what happened.” This included
highlighting Victim’s emotions while on the stand, the consistency of Victim’s
statements, and the absence of motive for Victim to be untruthful in her account of the
events. 	Defendant also emphasizes the prosecutor’s arguments that Defendant’s
version of events “[did] not make sense.”
{22} 	Trial judges are afforded broad discretion in managing closing arguments
because they are in the best position to assess the impact of allegedly improper
statements by counsel. State v. Sosa, 2009-NMSC-056, ¶ 25, 147 N.M. 351, 223 P.3d
348. We therefore review for abuse of discretion and will only find reversible error
in the “most exceptional circumstances.” See id.
{23} 	Prosecutors are permitted to comment on the veracity of witnesses so long as
the statements are based on the evidence—not personal opinion—and are not intended

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to incite the passion of the jury. 	See State v. Aguilar, 1994-NMSC-046, ¶ 22, 117
N.M. 501, 873 P.2d 247 (“Prosecutors may comment on witness’s veracity as long as
personal opinion is not expressed and as long as the comments are not intended to
incite the passion of the jury.” (internal quotation marks and citation omitted)); State
v. Pennington, 1993-NMCA-037, ¶¶ 27, 29, 115 N.M. 372, 851 P.2d 494 (stating that
it is permissible to highlight evidence that supports a witness’s credibility). However,
a prosecutor cannot vouch “for the credibility of a witness, either by invoking the
authority and prestige of the prosecutor’s office or by suggesting the prosecutor’s
special knowledge.” Pennington, 1993-NMCA-037, ¶ 27.
{24} 	The prosecutor’s statements regarding Victim’s veracity do not run afoul of
these prohibitions. The prosecutor did not personally vouch for Victim’s credibility,
either by insinuations of special knowledge or by virtue of her role as prosecutor. See
State v. Paiz, 2006-NMCA-144, ¶ 55, 140 N.M. 815, 149 P.3d 579 (stating that
vouching involves either “invoking the authority and prestige of the prosecutor’s
office or suggesting the prosecutor’s special knowledge” (internal quotation marks
and citation omitted)). She instead focused on specific indicators presented to the jury
throughout the trial as evidence of the truthfulness of Victim’s account. See State v.
Calvillo, 1990-NMCA-046, ¶ 18, 110 N.M. 114, 792 P.2d 1157 (“A prosecutor may

19
make comments about the evidence, and is given latitude in [her] closing argument,
in which [she] may discuss inferences which can be drawn from the evidence.”).
{25} 	Furthermore, the prosecutor’s statements regarding the veracity of Defendant’s
story do not constitute misconduct. Defendant and Victim were the only witnesses to
the event, and each testified to conflicting accounts. Where a case essentially revolves
around “which of two conflicting stories is true, a party may reasonably infer, and thus
argue, that the other side is lying.” Aguilar, 1994-NMSC-046, ¶ 23. And where the
defendant has testified, “[t]he [s]tate has a right to inquire into and comment upon the
credibility of the defendant as a witness.” State v. Hoxsie, 1984-NMSC-027, ¶ 6, 101
N.M. 7, 677 P.2d 620, overruled on other grounds by Gallegos v. Citizens Ins.
Agency, 1989-NMSC-055, 108 N.M. 722, 779 P.2d 99; see State v. Rojo, 1999-
NMSC-001, ¶ 56, 126 N.M. 438, 971 P.2d 829 (stating that “[t]he prosecutor may
comment on the credibility of defense witnesses” including the defendant himself
(internal quotation marks and citation omitted)). 	Defendant makes no further
argument that, beyond questioning the credibility of his story, the prosecutor’s
statements were intended to incite prejudice toward Defendant. See Aguilar, 1994-
NMSC-046, ¶ 22. We accordingly find no prosecutorial misconduct in regard to these
statements.
B. 	Reference to CODIS

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{26} 	Defendant was identified by DNA left at the scene. The DNA was run through
the CODIS system and provided a positive match to Defendant. On appeal, Defendant
concisely argues that “[t]he prosecutor, as described in the facts, also made
inappropriate references to CODIS.” Defendant makes no further argument as to why
references to CODIS were inappropriate. In fact, upon reviewing Defendant’s facts
section, we found no reference to statements by the prosecutor regarding the CODIS
system. 	We are thus unaware of what “inappropriate references” Defendant is
referring to, and we will not search the record to find facts to support this argument.
Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not
search the record for facts, arguments, and rulings in order to support generalized
arguments.”).
IV. 	Evidence Supporting Defendant’s CSP II Conviction
{27} 	Pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982 and
State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, Defendant argues that
there was insufficient evidence to support his conviction for CSP II because he
testified that he was in a consensual sexual relationship with Victim and there was no
clear evidence introduced to establish that he forced Victim to engage in sexual
intercourse.

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{28} 	“The reviewing court does not weigh the evidence or substitute its judgment for
that of the fact finder as long as there is sufficient evidence to support the verdict.”
State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogated on
other grounds by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683.
In order to convict Defendant of CSP II, the jury was required to find that Defendant
caused Victim to engage in sexual intercourse and that he was armed with and used
a gun. The jury chose to accept Victim’s testimony that Defendant held a gun to her
head while forcing her to engage in sexual intercourse. 	Thus, regardless of
Defendant’s contrary testimony, there was sufficient evidence to support his
conviction. 	See Rojo, 1999-NMSC-001, ¶ 19 (“Contrary evidence supporting
acquittal does not provide a basis for reversal because the jury is free to reject [the
d]efendant’s version of the facts.”).
CONCLUSION
{29} 	For the foregoing reasons, we reverse the district court’s modification of
Defendant’s conviction and remand to reinstate Defendant’s conviction for first
degree kidnapping. We affirm Defendant’s remaining convictions.
{30} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

LINDA M. VANZI, Judge

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