July 23, 2020- State of New Mexico v. Ricky Sena, No. A-1-CA-37900

OCR transcription for search; preserved printed pages are authoritative

6)

7
8)

id

11
12

13
14
15
1

17

18
19)
20
21

22

23

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO Filed 7/23/2020 10:55 AM
Plaintiff-A ppellee, A. wa LE :
Mark Reynolds
V. No. A-1-CA-37900
RICKY SENA,
Defendant-A ppellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Drew D. Tatum, District Judge

Hector H. Balderas, Attomey General

Santa Fe, NM

John Kloss, Assistant Attomey General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

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

for Appellant
MEMORANDUM OPINION

HENDERSON, J udge.

{43 A jury convicted Defendant Ricky Sena of battery, pursuant to NMSA 1978,
Section 30-3-4 (1963); unlawful taking of a motorvehicle, pursuant to NMSA 1978,
Section 30-16D-1(A)(1) (2009); aggravated fleeing a law enforcement officer,
pursuant to NMSA 1978, Section 30-22-1.1 (2003); and resisting, evading, or

obstructing an officer, pursuant to NMSA 1978, Section 30-22-1 (1981). Defendant

2
raises two issues on appeal. First, he appeals his conviction for aggravated fleeing	1
of law enforcement on the grounds that the State did not present sufficient evidence	2
to support his conviction. Second, Defendant asserts that the district court abused its	3
discretion by denying his motion to grant a change in venue due to pretrial publicity.	4
Unpersuaded, we affirm.	5
BACKGROUND	6
{2} 	Because this is a memorandum opinion and the parties are familiar with the	7
facts and procedural history of the case, we set forth here only a brief overview of	8
the relevant historical facts of the case. We include discussion of specific facts where	9
necessary to our analysis.	10
{3} 	On July 16, 2017, Daniel Kilmer called police to report that his vehicle had	11
just been stolen. Kilmer was inside an Allsup’s convenience store making a purchase	12
when he noticed an unknown male in his car, driving away. Sergeant Trevor Thron	13
of the Clovis Police Department responded shortly thereafter to meet with Kilmer at	14
the Allsup’s. Not long after their meeting, while still on patrol, Sergeant Thron	15
observed a car that matched the description of the stolen vehicle. Sergeant Thron	16
activated his emergency lights and siren in an attempt to stop the vehicle. However,	17
Defendant, the driver of the vehicle, did not pull over or yield to Sergeant Thron’s	18
attempt to get him to stop. Sergeant Thron, with his emergency lights and sirens	19
activated, followed Defendant through various city roads for approximately four	20
miles. Other Clovis Police Officers also joined to assist in the pursuit, as did deputies	21

3
from the Curry County Sheriff’s Office, anticipating that Defendant may flee city	1
limits.	2
{4} 	At times during the pursuit, Sergeant Thron observed Defendant driving at	3
speeds between 45-65 miles per hour. Defendant drove into oncoming traffic lanes	4
at least twice. He then proceeded to lead law enforcement officers into the parking	5
lot of the Comfort Inn hotel, where people at the hotel had to run to get out of the	6
way of Defendant’s vehicle. Out of concern for the safety of the surrounding public,	7
the pursuit was terminated at Sergeant Thron’s directive after approximately eight	8
minutes 	of 	Defendant 	fleeing 	from 	law 	enforcement. 	Defendant 	was 	later	9
apprehended by the Curry County Sheriff’s Office, after leading police on at least	10
one other pursuit.	11
DISCUSSION	12
{5} 	Defendant 	argues 	that 	there 	was 	insufficient 	evidence 	to 	support 	his	13
conviction for aggravated fleeing of law enforcement because the State failed to	14
establish that he drove in a manner that endangered the life of any individual.	15
Defendant also asserts the district court abused its discretion when it denied his	16
motion for change of venue, depriving him of the right to a fair trial because	17
members of the local county were prejudiced against him.	18

4
I. 	There Was Sufficient Evidence for the Jury to Find Defendant Guilty of
Aggravated Fleeing a Law Enforcement Officer
{6} 	Defendant 	challenges 	the 	sufficiency 	of 	the 	evidence 	supporting 	his	1
conviction for aggravated fleeing a law enforcement officer. “The test for sufficiency	2
of the evidence is whether substantial evidence of either a direct or circumstantial	3
nature exists to support a verdict of guilty beyond a reasonable doubt with respect to	4
every element essential to a conviction.” State v. Montoya, 2015-NMSC-010, ¶ 52,	5
345 P.3d 1056 (internal quotation marks and citation omitted). With regard to	6
sufficiency of the evidence challenges, this Court’s function is to “ensure that a	7
rational jury could have found beyond a reasonable doubt the essential facts required	8
for a conviction.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515	9
(internal quotation marks and citation omitted). “Contrary evidence supporting	10
acquittal does not provide a basis for reversal because the jury is free to reject	11
Defendant’s version of the facts.” See State v. Rojo, 1999-NMSC-001, ¶ 19, 126	12
N.M. 438, 971 P.2d 829. To determine whether substantial evidence exists, we	13
measure the evidence against the instructions submitted to the jury. State v. Smith,	14
1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (“Jury instructions become the	15
law of the case against which the sufficiency of the evidence is to be measured.”)	16
{7} 	The jury was instructed that to find Defendant guilty of aggravated fleeing of	17
law enforcement, the State was required to prove, beyond a reasonable doubt, that:	18
1. 	[D]efendant operated a motor vehicle;	19

5
2. 	[D]efendant drove willfully and carelessly in a manner	1
that endangered the life of another person;	2
3. 	[D]efendant had been given a visual or audible signal to	3
stop by a uniformed law enforcement in an appropriately marked law	4
enforcement vehicle;	5
4. 	[D]efendant knew that a law enforcement officer had	6
given him an audible or visual signal to stop;	7
5. 	This happened in New Mexico on or about July 16, 2017.	8
See UJI 14-2217 NMRA (emphasis added). We limit our sufficiency review to the	9
element of endangerment, as it is the only element of aggravated fleeing challenged	10
on appeal.	11
{8} 	“We view the aggravated fleeing statute as evincing legislative intent to more	12
severely punish people who jeopardize the safety of others while fleeing from law	13
enforcement officers.” State v. Vest, 2018-NMCA-060, ¶ 8, 428 P.3d 287, cert.	14
granted, 2018-NMCERT-___ (No. S-1-SC-37210, Sept. 24, 2018). The act of	15
fleeing law enforcement is aggravated because “the person flees in a manner that	16
endangers the lives of others.” Id. (alteration, internal quotation marks, and citation	17
omitted). Thus, “the aggravated fleeing statute requires that the [s]tate prove actual	18
endangerment to another person.” Id. ¶ 10.	19
{9} 	During trial, the jury was presented with testimony from the officers involved	20
in the pursuit, and the dash camera footage that recorded the pursuit. The jury heard	21
testimony from Sergeant Thron about two specific individuals who were endangered	22
by Defendant’s actions while fleeing from law enforcement. Sergeant Thron testified	23

6
that two individuals who were crossing through the Comfort Inn parking lot had to	1
“run and get out of the way” of Defendant’s “vehicle [when] they saw [Defendant	2
and law enforcement] coming around the corner.” While there was officer testimony	3
regarding other actions taken by Defendant during this pursuit, the Court relies on	4
this evidence alone to determine that there was sufficient evidence to satisfy the	5
endangerment element. When viewing the evidence in the light most favorable to	6
the verdict, we hold the evidence presented at trial was sufficient to support the jury’s	7
verdict that Defendant drove willfully and carelessly in a manner that endangered	8
the life of another person. See UJI 14-2217.	9
II. 	The District Court Did Not Abuse Its Discretion by Denying Defendant’s	10
Motion for Change of Venue	11
{10} 	Defendant next argues the district court erred in denying his pretrial motion	12
to change venue. “We review the denial of a motion for change of venue for an abuse	13
of discretion.” State v. Astorga, 2015-NMSC-007, ¶ 68, 343 P.3d 1245. The district	14
court possesses broad discretion in ruling on a motion to change venue, and absent	15
a showing of an abuse of that discretion, we will not disturb its decision. See State	16
v. Chamberlain, 1991-NMSC-094, ¶ 6, 112 N.M. 723, 819 P.2d 673. “The burden	17
of establishing an abuse of discretion is borne by the party that opposes the [district]	18
court’s venue decision.” State v. Vasquez, 2010-NMCA-041, ¶ 35, 148 N.M. 202,	19
232 P.3d 438 (internal quotation marks and citation omitted).	20

7
{11} 	A district court’s decision whether “to grant a change of venue may be based	1
on either a presumption that prospective jurors are prejudiced or on evidence of	2
actual juror prejudice.” Id. ¶ 36. “Presum[ptive] prejudice arises when evidence	3
shows that the community is so saturated with inflammatory publicity about the	4
crime that it must be presumed that the trial proceedings are tainted.” Astorga, 2015-	5
NMSC-007, ¶ 68 (internal quotation marks and citation omitted). “Actual prejudice	6
requires a direct investigation into the attitudes of potential jurors during voir dire to	7
establish whether there is such widespread and fixed prejudice within the jury pool	8
that a fair trial in that venue would be impossible.” Id. (alteration, omission, internal	9
quotation marks, and citation omitted). “Voir dire establishes actual prejudice by	10
exposing the actual existence of such an opinion in the mind of the juror as will raise	11
the presumption of partiality.” State v. House, 1999-NMSC-014, ¶ 52, 127 N.M.	12
151, 978 P.2d 967 (internal quotation marks and citation omitted). “A finding of no	13
actual prejudice must be supported by substantial evidence and necessarily precludes	14
a 	finding 	of presumed 	prejudice.” 	Astorga, 	2015-NMSC-007, ¶ 68 	(internal	15
quotation marks and citation omitted).	16
{12} 	Defendant’s change of venue motion indicates that one month before his	17
scheduled jury trial in this underlying case, he escaped from Curry County Detention	18
Center. As a result of his escape from the detention center, there was extensive news	19
coverage—both statewide and nationwide—of the escape and subsequent manhunt.	20
Defendant asserted that the pretrial publicity, occurring less than thirty days before	21

8
his scheduled trial, gave rise to a reasonable probability that he would not receive a	1
fair trial. Following a hearing on Defendant’s motion, the district court denied the	2
motion in a decision letter. The district court stated Defendant “failed to establish	3
actual prejudice or a presumption of prejudice,” and that “media coverage alone	4
[was] insufficient for [the c]ourt to change venue.” The parties were advised that	5
their questions related to possible prejudice or formation of fixed opinions by	6
potential jurors should “be vetted through the voir dire process[.]”	7
{13} 	During voir dire, Defendant did not inquire whether any of the potential jurors	8
had been exposed to the media coverage regarding the instant case or other related	9
cases. Defendant did not renew his request for change of venue after voir dire but	10
instead waited to raise the issue on appeal.	11
{14} 	Defendant argues, as he did in the district court, that pretrial publicity and	12
public statements by community officials resulted in presumptive prejudice by	13
saturating the community of Clovis and surrounding communities as well. However,	14
as we noted above, the district court expressly found that Defendant did not	15
demonstrate presumptive prejudice and that he was required to proceed with an	16
examination of actual prejudice through voir dire. Therefore, our review of	17
Defendant’s argument is limited to the evidence of actual prejudice. See State v.	18
Barrera, 2001-NMSC-014, ¶ 16, 130 N.M. 227, 22 P.3d 1177 (concluding that “if	19
the [district] court determines that a movant has not demonstrated presumed	20

9
prejudice and proceeds with voir dire, we will limit our review to the evidence of	1
actual prejudice”).	2
{15} 	On appeal, the State argues that Defendant did not take the opportunity to	3
screen for actual prejudice during voir dire, as he was advised to do by the district	4
court. The State thus asserts that Defendant failed to carry his burden to show that	5
the district court’s ruling was an abuse of discretion requiring reversal. We agree.	6
{16} 	In this case, Defendant had the opportunity to establish actual prejudice during	7
voir dire. However, Defendant did not do so. Counsel did not take the opportunity	8
to question the prospective jurors about their exposure to the media coverage	9
regarding the instant case, or other media coverage about Defendant. Moreover,	10
Defendant makes no argument that any of the impaneled jurors exhibited actual	11
prejudice. “Defendant did not renew his motion for a change of venue after voir dire,	12
tacitly agreeing that there was no evidence of actual prejudice among the members	13
of the guilt-phase jury panel.” Astorga, 2015-NMSC-007, ¶ 70. Accordingly, we	14
conclude that the district court did not abuse its discretion in denying Defendant’s	15
motion for change of venue.	16
CONCLUSION	17
{17} 	For the foregoing reasons, we affirm.	18
{18} 	IT IS SO ORDERED.	19
__________________________________	20
SHAMMARA H. HENDERSON, Judge	21

1
WE CONCUR:
Cole 4. Vargar
2 3
JULIE J. VARGAS, Judge
4 5
Kasina Bojardua
KRISTINA BOGARDUS, Judge
10