April 2, 2019- State of New Mexico v. Nicholas A. Riso, No. A-1-CA-37285

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N THE COURT OF APPEALS OF THE STATE OF NEW MEX CO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed 4/2/2019 9:55 AM
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Plaintiff-Appellee, Nek Loot
V. NO. A-1-CA-37285
NICHOLAS A. RISO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
Emilio Jacob Chavez, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee

Peifer, Hanson & Mullins, P.A.
Mark T. Baker

James Walker Boyd
Albuquerque, NM

for Appellant

MEMORANDUM OPINION

VANZI, Judge.

{i}

Defendant appeals his conviction, following a jury trial, of false imprisonment.

[DS 3] This Court issued a notice of proposed summary disposition, proposir — to

affirm. [CN 4] Defendant has filed a memorandum in opposition to that proposed

1 disposition. Having duly considered that memorandum, we remain unpersuaded and
2 affirm Defendant's conviction.
3 	{2} 	Although Defendant's docketing statement challenged the sufficiency of the
4 evidence without identifying a specific element of false imprisonment that the State
5 	failed to prove, we understood him to be challenging the knowledge element of that
6 offense. 	[CN 	2] 	Because 	there 	was 	circumstantial 	evidence 	of Defendant's
7 knowledge, which is frequently not susceptible of proof by direct evidence, this
8 	Court's notice of proposed summary disposition proposed to affirm. [CN 3-4] See
9 	State v. Montoya, 2015-NMSC-010, ,r 52,345 P.3d 1056 ("The test for sufficiency
10 	of the evidence is whether substantial evidence of either a direct or circumstantial
11 	nature exists to support a verdict of guilty beyond a reasonable doubt with respect to
12 every element essential to a conviction." (internal quotation marks and citation
13 	omitted)). In his memorandum in opposition, Defendant continues to assert that the
14 evidence was insufficient to establish his knowledge that his restraint of the victim
15 	in this case was with out consent. [MIO 14-1 7]
16 	{3} 	In doing so, Defendant suggests that his familial relationship to the victim
17 prevented the State from establishing that knowledge. [MIO 14-15] See State v.
18 	Smith, 1997-NMSC-Ol 7, ,r 9, 123 N.M. 52, 933 P.2d 851 (discussing the lawful
19 authority of "a parent of minor children"). Defendant does not explain, however, how
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1 his status as the brother-in-law of a minor child could have supplied the necessary
2 consent or justification for the conduct at issue in this case. Defendant offers no
3 reason to conclude that anything resembling the parental authority at issue m
4 	Smith arose from his relationship to the young sister of his wife.
5 	{4} 	In his memorandum in opposition to summary disposition, Defendant also
6 asserts that the State failed to prove that Defendant restrained the victim in this case.
7 	[MIO 5-14] In doing so, Defendant points out that restraint cannot be established
8 merely "by a victim' s testimony that he or she felt restrained." [MIO 11] And, in this
9 case, Defendant asserts that "the only evidence that could potentially support a
10 finding of restraint is [the victim's] testimony that she asked [Defendant] whether he
11 	was ' finished ' after he hugged her and kissed her." [MIO 14] We disagree. Instead,
12 	we hold that a reasonable jury could have found that Defendant restrained her on the
13 	basis of her testimony that he climbed into her bed and put his body on top of her
14 	body and that his weight prevented her from moving. [MIO 4, 11; DS 4]
15 	{5} 	Thus, for the foregoing reasons, as well as those stated in our notice of
16 proposed summary disposition, we affirm the judgment and sentence of the district
17 court.
18 	{6}
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IT IS SO ORDERED.
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WE CONCUR:
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M. MONICA ZAMORA Chief Judge
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Megan P Duffy
MEGAN P! DUFFY, Judge
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