A-1-CA-36352 | Omnilex

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Court of Appeals of New Mexico
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Court of Appeals of New Mexico
Filed 7/31/2019 11:20 AM

Corrections to this opinion not affecting the outcome, at the Court's discretion, can occur up to the time of publication with WM
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEX
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v. No. A-1-CA-36352
JUAN H. AGUILAR,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Drew D. Tatum, District Judge

Hector H. Balderas, Attorney General

Marko D. Hananel, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM
for Appellant
MEMORANDUM OPINION
DUFFY, Judge.
{1}. Defendant appeals his conviction for second-degree kidnapping, contrary to

NMSA 1978, Section 30-4-1 (2003), claiming that (1) the district court’s failure to

define “sexual offense” in the jury instructions was fundamental error, (2) the district

wl . |
Merk Reynolds

court’s failure to instruct the jury on unlawfulness as an element was reversible error,
(3) there was insufficient evidence to sustain his conviction, and (4) the district court
incorrectly sentenced him to lifetime parole. Because we conclude that the district
court’s failure to instruct the jury on the definition of sexual offense under the facts
of this case was fundamental error and that sufficient evidence supported
Defendant’s conviction, we reverse and remand for a new trial.

BACKGROUND

23 At trial, Victim testified that on the morning of February 19, 2016, she set out
to walk to Walmart to buy things for her children. While she was walking, she spoke
to her mother on her cell phone. After she had walked two or three blocks, Defendant
pulled up and asked Victim if she needed a ride. Victim said she needed a ride to
Walmart and Defendant said he would take her there. Victim got in the truck.
Defendant made a U-turn and drove down a dirt road, in the opposite direction from
Walmart.

{3} Victim stated that she “went into shock” and “didn’t know what to think”
because although this road was down the street from where she lived, there were no
houses or business, “just dirt.” Victim texted her mother, asking for help because
she was scared and did not know what to do. Defendant drove down the road for
some distance and parked. He asked Victim if she would kiss him and Victim said

no. Defendant got out of the truck and made a phone call.

{4} While Defendant was outside of the truck, Victim spoke with her mother on
her phone, using her earbuds. At some point during Victim’s communication with
her mother, Victim’s sister called the police. Defendant then got back in the truck,
put his hand on Victims breast, outside her clothing, and tried to rub Victim’s back.
Defendant tried to kiss Victim, putting his hand on her face and trying to pull her
toward him. Victim pulled away. Defendant was not able to kiss Victim and Police
officers arrived less than five minutes later.

{5} Defendant also testified at trial and his account was different. He testified that
Victim approached him and asked if he would take her to Walmart. Defendant said
he could take her part of the way. Victim agreed and got in the truck, but at some
point during the trip, Victim changed her mind and wanted to go home instead.
Defendant turned around and started driving away from Walmart, after which Victim
inexplicably refused to speak to him again. Defendant asked Victim to get out of the
truck several times, to no avail. He asked her where she lived, but she did not
respond. He pulled over and told her she could get out, but she refused. Defendant
called his wife and told her he would be late. Defendant asked Victim where she
wanted to get out because he wanted to take her back to Walmart and be done with
the encounter. Defendant had started to turn the truck around when the police
arrived. According to Defendant, he did not ask to kiss Victim, touch her, or kiss

her.

\O o ~) ON Nn B&W

{6} The jury was instructed that to find Defendant guilty, the State must prove
beyond a reasonable doubt that:
l. [D]efendant confined or transported [Victim] by deception by

offering her a ride to Walmart and then taking her down an empty dirt
road;

2. [D]efendant intended to inflict a sexual offense on [Victim];

3. This happened in New Mexico on or about the 19th day of
February, 2016.

The jury found Defendant guilty. Defendant appeals.
DISCUSSION

A. The Failure to Define Sexual Offense Was Fundamental Error

{7} To convict Defendant of kidnapping, the jury was required to find that
Defendant acted with the specific intent to inflict a sexual offense on Victim. In New
Mexico, sexual offenses are a category of criminal offense set forth in NMSA 1978,
Sections 30-9-1 to -21 (1963, as amended through 2017), and include criminal sexual
contact (CSC), defined as the “unlawful and intentional touching of or the
application of force, without consent, to the unclothed intimate parts of another.”
Section 30-9-12(A) (emphasis added); see also Section 30-9-11 (defining criminal
sexual penetration (CSP) as “the unlawful and intentional causing of a person to
engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing
of penetration, to any extent and with any object, of the genital or anal openings of
another, whether or not there is any emission”). Thus, in order to find that Defendant

acted with the specific intent to inflict a sexual offense, the jury had to find that

Defendant, at a minimum, intended to touch the unclothed intimate parts of Victim.
Because Defendant did not commit and was not charged with committing a sexual
offense, the jury was not separately instructed on the definition or elements of CSC
or CSP. Defendant argues that without this information, the jury may not have
understood that his actions did not constitute a sexual offense, or what was necessary
to find that the specific intent element was satisfied in this case. The State responds
that no definition was required because “sexual offense” has a conventionally
understood meaning, and further, that because the evidence of Defendant’s intent
was substantial, there is no likelihood of juror confusion.

{8} Because Defendant’s argument was not preserved below, we review for
fundamental error. State v. Cabezuela, 2011-NMSC-041, 9 21, 150 N.M. 654, 265
P.3d 705; accord Rule 12-321(B)(2)(c) NMRA. Under fundamental error review,
we ask whether “a defendant’s conviction shocks the conscience because either (1)
the defendant is indisputably innocent, or (2) a mistake in the process makes a
conviction fundamentally unfair notwithstanding the apparent guilt of the accused.”
State v. Astorga, 2015-NMSC-007, § 14, 343 P.3d 1245 (alteration, internal
quotation marks, and citations omitted). “Under this standard, we must determine
whether a reasonable juror would have been confused or misdirected ... from
instructions which, through omission or misstatement, fail to provide the juror with

an accurate rendition of the relevant law.” State v. Samora, 2016-NMSC-031, § 27,

387 P.3d 230 (internal quotation marks and citation omitted). “In applying the
fundamental error analysis to deficient jury instructions, we are required to reverse
when the misinstruction leaves us with no way of knowing whether the conviction
was or was not based on the lack of the essential element.” State v. Montoya, 2013-
NMSC-020, { 14, 306 P.3d 426 (internal quotation marks and citations omitted).

{9} In this case, we must determine whether a missing definitional instruction is
fundamental error. Our courts have stated that a missing definition generally “cannot
result in the sort of fundamental unfairness that undermines the integrity of the
judicial system[,]” State v. Barber, 2004-NMSC-019, ¥ 20, 135 N.M. 621, 92 P.3d
633, unless the missing definition is “akin to a missing elements instruction.” State
v. Mascarenhas, 2000-NMSC-017, 4 20, 129 N.M. 230, 4 P.3d 1221 (holding that
“the jury instructions should have included a definition of ‘reckless disregard’ to
prevent confusion of the standard necessary to sustain a conviction and that “the trial
court’s failure to provide the instruction was a critical determination akin to a
missing elements instruction”). Two New Mexico Supreme Court cases highlight
the differences in these standards.

{10} In Barber, our Supreme Court determined that a missing definition did not
constitute fundamental error because it was cured by other factors. 2004-NMSC-
019, { 1. The defendant was charged with possession of methamphetamine with

intent to distribute, and he argued that the failure to instruct the jury on the legal

definition of “possession” was fundamental error because he was only in proximity
to the drugs, and not in “control” over them as required for conviction. Jd. J§ 10, 12.
Our Supreme Court acknowledged that “the legal definition of possession is not
necessarily rooted in common discourse” but concluded that the missing definition
was not akin to a missing elements instruction because “no distinct possibility exists
from the evidence that the jury convicted [the defendant] without finding all the
elements beyond a reasonable doubt.” Jd. § 22, 26. First, the Barber Court observed
that although the jury was not instructed on the legal definition of possession (that
the defendant had knowledge and control over the drugs), the jury’s common
understanding would equate possession with ownership rather than proximity, and
because “ownership [was] more difficult to prove than possession alone[,]” this
understanding would place a greater burden of proof on the prosecution than what
was required under the law. Jd. § 26. Second, the Court determined that the evidence
was such that “there [was] no reasonable likelihood that the jury was confused, or
confused enough to convict on proximity alone.” /d. | 28. Third, the Court observed
that the jury could not have found that the defendant had the intent to distribute
“without also finding that [the defendant] was exercising some degree of control
over the drugs.” /d. | 30. Based on these considerations, the Barber Court concluded
that “even though arguably ambiguous without defining possession, [the jury

instructions omitting the definition] did not create confusion in the jury that would

undermine the reliability of the verdict and the integrity of our judicial system.” Jd.
{ 32.

{11} In contrast, where jury instructions fail to properly instruct the jury on an
essential element of an offense, our Supreme Court has held that it is fundamental
error to omit the definition. Mascarefias, 2000-NMSC-017, § 20. In Samora, for
example, the defendant was convicted of kidnapping with intent to commit a sexual
offense and CSP after he “was accused of luring a sixteen-year-old male into his
truck by deception, driving him to a secluded location in Albuquerque, and then
forcibly penetrating him in the anus.” 2016-NMSC-031, J 1. The jury instructions
failed to include language instructing the jury that it must determine that the sexual
contact was non-consensual for it to be unlawful, id. Jf 1, 24, and “did not define
the term ‘sexual offense’ beyond providing the elements of CSP and CSC through
other instructions.” Jd. § 33. The Court noted that despite the absence of a definition
of “sexual offense” in the jury instructions, the jury found that the defendant had
committed a “sexual offense” against the victim during the kidnapping. Jd. 4 31. The
Court was concerned that “the jury . . . could have reached this finding without an
understanding that in this case, it had to find beyond a reasonable doubt that the anal
penetration was non-consensual for [the defendant’s] act to constitute a sexual
offense.” Jd. The Court concluded that “[b]ecause the jury may have been confused

or misdirected as to whether consensual sex between [the victim] and [the defendant]

could still be a sexual offense,” the kidnapping charge was infected by potential
confusion. /d. 433. The Court ultimately reversed the kidnapping conviction for
fundamental error, stating “we cannot determine whether the jury found that the
sexual act was non-consensual beyond a reasonable doubt[.]” /d.

{12}. Turning to this case, Defendant’s intent to inflict a sexual offense was an
essential element of his conviction and we must determine whether a reasonable
juror would have been confused or misdirected by the lack of a definition for “sexual
offense,” such that the instructions, “through omission or misstatement, fail to
provide the juror with an accurate rendition of the relevant law.” Jd. § 27. The
evidence presented in the record demonstrates the potential for juror confusion here.
Specifically, in addition to driving Victim away from her intended destination,
Victim testified that Defendant asked if he could kiss her, and although she said no,
he then rubbed her back, touched her clothed breast, and pulled her face toward him
and tried to kiss her. Victim pulled away before Defendant could kiss her. There was
no evidence presented to suggest that Defendant made any further advances after
that point, that he continued his unwanted attempts, or that he escalated his behavior
before police arrived approximately five minutes later. Defendant, for his part,
denied that these acts occurred at all. If the jury believed Victim, then the jury may
reasonably have concluded that Defendant’s conduct demonstrated a disregard for

Victim’s denial of consent and evinced an intent to escalate his conduct to the level

of a sexual offense. However, the evidence also suggests that Defendant did not
continue his unwanted advances after his unsuccessful attempt to kiss Victim, from
which a reasonable jury could also have inferred that Defendant had accepted
Victim’s rejection and did not intend any further contact. Under the second
possibility, without a definition of sexual offense, the jury may have mistakenly
concluded that the mens rea element was satisfied by Defendant’s conduct—that in
touching Victim’s clothed breast and trying to force her to kiss him, Defendant
inflicted a sexual offense. Under the facts presented in this case, a definitional
instruction was necessary to inform the jury that Defendant’s conduct did not
constitute a sexual offense, and that to convict Defendant of kidnapping, the jury had
to find beyond a reasonable doubt that Defendant intended to do more than what
occurred—that he must have intended a further act that constituted a sexual offense.
Based upon the facts at issue, the lack of a definitional instruction leaves us with no
way of knowing whether the jury found that Defendant intended to commit a sexual
offense beyond a reasonable doubt. See id. 29.

{13} Unlike Barber, no curative factors are present here. First, although the State
argues that “sexual offense” has a conventionally understood meaning—“intentional
contact with a person’s intimate parts against their will”’—this understanding
underscores the very problem we note above, that “sexual offense might be

understood to include touching over the clothing. If the jurors understood sexual

offense to include unwanted touching over clothing, that misunderstanding would
have allowed the jury to convict based upon an incorrect belief that Defendant’s
conduct amounted to a sexual offense. Unlike Barber, where the jurors’
misunderstanding would impose a heavier burden on the prosecution, here, the jury’s
misunderstanding would impose a lighter burden and allow the jury to convict based
on that improper, lesser standard. See Barber, 2004-NMSC-019, § 26.

414} Second, unlike in Barber, the strength of this evidence is not such that it
“belies any claim of [the defendant’s] indisputable innocence[.]” Jd. J 14. The State
argues that Victim’s testimony is so strong that there is “simply no likelihood of any
material confusion that Defendant intended to commit a sexual offense on Victim.”
Even if the jury had accepted Victim’s testimony, however, it is not sufficient to cure
the possibility that Defendant’s kidnapping conviction could be based on a
misunderstanding that a sexual offense had actually been committed. The evidence
here did not independently and indisputably establish Defendant’s intent, and
therefore, does not present the same compelling circumstances as in Barber, where
our Supreme Court concluded there was no doubt whether the jury actually found
the essential elements of the crime.

415} Finally, the element of intent to inflict a sexual offense was not satisfied
through other instructions. As the State points out, “New Mexico courts have not

often been called upon to determine whether there was sufficient evidence of intent

to commit a sexual offense in a kidnapping case where no sexual offense occurred.”
This is not a case in which kidnapping with intent to commit a sexual offense was
charged alongside the completed crime. In such cases, instructions on the other
sexual crime can adequately define the intent required for conviction of kidnapping.
See, e.g., State v. Laguna, 1999-NMCA-152, J 1, 128 N.M. 345, 992 P.2d 896
(addressing conviction of first-degree kidnapping and CSC of a minor). Here,
Defendant’s conviction could only be based on an intent to commit a future act—a
sexual offense—that was not alleged to have actually been committed. Since
Defendant was not charged with a sexual offense and sexual offense was not
otherwise defined, the intent requirement was not instructed or implicitly found by
way of conviction a separate charge.

{16} Instead, similar to Samora, the jury may have been confused or misdirected
as to whether Defendant’s actions constituted a sexual offense on Victim. 2016-
NMSC-031, § 33. Because we cannot determine whether the jury found the mens
rea element based upon Defendant’s completed actions or his intended future
actions, we have no way of knowing whether the conviction was or was not based
on all essential components of intent to commit a sexual offense beyond a reasonable
doubt. See id. § 29 (“Fundamental error occurs when jury instructions fail to inform
the jurors that the State has the burden of proving an essential element of a crime

and we are left with ‘no way of knowing’ whether the jury found that element beyond

a reasonable doubt.”). Therefore, we must reverse Defendant’s kidnapping
conviction for fundamental error.

B. The Denial of Defendant’s Request for an Instruction on Unlawfulness
Was Not Reversible Error

{17} Defendant also argues that the district court erred in denying his request to
instruct the jury on “unlawfulness” using UJI 14-132 NMRA. The State does not
dispute that this issue was preserved at trial, and so we review the district court’s
refusal for reversible error. See State v. Montoya, 2015-NMSC-010, § 25, 345 P.3d
1056.

{183 “When evidence at trial supports the giving of an instruction on a defendant’s
theory of the case, failure to so instruct is reversible error.” State v. Henley, 2010-
NMSC-039, 925, 148 N.M. 359, 237 P.3d 103 (internal quotation marks and citation
omitted). “Reversible error arises if a reasonable juror would have been confused or
misdirected. Jury instructions are to be read and considered as a whole and when so
considered they are proper if they fairly and accurately state the applicable law.”
Montoya, 2015-NMSC-010, § 25 (alteration, internal quotation marks, and citation
omitted). “The trial court need not . . . offer duplicate instructions if the instructions
given adequately apprise the jury of the controlling law.” State v. Bunce, 1993-
NMSC-057, 7 8, 116 N.M. 284, 861 P.2d 965 (citation omitted).

{19} Defendant argues that unlawfulness is an element of kidnapping and therefore,

UJI 14-132, which defines “[(u]nlawfulness as an element,” was required. See

Section 30-4-1(A) (defining kidnapping, in part, as “the unlawful taking, restraining,
transporting or confining of a person” (emphasis added)); see also UJI 14-132 use
note 1 (“[The] instruction was intended” for use “when the statutory definition of
the offense includes the term “unlawful,” and an issue is raised as to the lawfulness
of the defendant’s act....These offenses include certain assault and battery
offenses, sex offenses and false imprisonment or kidnapping offenses.”). UJI 14-132
states that “[i]n addition to the other elements of [kidnapping], the state must prove
beyond a reasonable doubt that the act was unlawful.” The instruction then provides
two alternative definitions for unlawfulness, stating, “For the act to have been
unlawful, it must have been done”: (1) with the intent to arouse or gratify sexual
desire, or (2) to intrude upon the bodily integrity or personal safety of Victim.
Although Defendant did not specify to the district court which of the “unlawfulness”
alternatives he would have preferred, on appeal, he argues that unlawfulness should
have been defined to mean that the act must have been done “to intrude upon the
bodily integrity or personal safety” of the Victim.

420} In State v. Osborne, 1991-NMSC-032, J 25, 111 N.M. 654, 808 P.2d 624, our
Supreme Court suggested that although unlawfulness is a “statutory element”
appearing in many criminal statutes, including kidnapping, other elements of the
offense within the jury instructions may “cover” the requirement that the defendant

acted unlawfully. /d. § 30. After deciding Osborne, however, our Supreme Court

adopted UJI 14-132 with the intention of “aid[ing] the court and the parties in
preparing an instruction when the statutory definition of the offense includes the
term ‘unlawful’ and an issue is raised as to the lawfulness of the defendant’s act.”
Whether the separate instruction is necessary depends on whether “unlawfulness” is
at issue, as when an excuse or justification for an act is asserted, or whether proof of
the other elements of the offense establish the element of unlawfulness without the
need for additional instruction. Osborne, 1991-NMSC-032, 4 29-30.

{21} In this case, the element of unlawfulness was adequately covered by the
specific intent element of the kidnapping instruction given at trial. The jury was
instructed that it must find that Defendant intended to inflict a sexual offense on
Victim in order to convict on the kidnapping charge. While Defendant argues that
UJI 14-132 “would have made clear to the jury that it had to find that [Defendant]
drove down the dirt road with the intent to ‘intrude upon the bodily integrity or
personal safety [of Victim],’” an intent to commit a sexual offense necessarily
encompasses this conduct. See UJI 14-132. The jury could not have found that
Defendant acted with the intent to inflict a sexual offense without also concluding
that Defendant had the intent intrude upon the bodily integrity of Victim.
Defendant’s requested instruction on unlawfulness was therefore unnecessary as
duplicative of the instruction given at trial and the district court did not err in refusing

it.

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C. Sufficiency of the Evidence
{22} Although we reverse, “we are required to determine whether sufficient
evidence was presented to support [the defendant’s conviction] to avoid double
jeopardy concerns should the [s]tate seek to retry the defendant.” Samora, 2016-
NMSC-031, 4 34. “If we find that sufficient evidence was presented at trial to
support a conviction, then retrial is not barred. We review [the defendant’s] claim
under the erroneous instruction provided to the jury at trial.” State v. Dowling, 2011-
NMSC-016, 4 18, 150 N.M. 110, 257 P.3d 930 (citation omitted).

Under a sufficiency of the evidence test, we view the evidence in the

light most favorable to the verdict and draw all inferences in favor of

the verdict to determine 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. Suazo, 2017-NMSC-011, 32, 390 P.3d 674 (internal quotation marks and
citations omitted). “[T]he jury is free to reject [the defendant’s] version of the facts.”
State v. Rojo, 1999-NMSC-001, 419, 126 N.M. 438, 971 P.2d 829. Substantial
evidence is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” State v. Salgado, 1999-NMSC-008, 4 25, 126
N.M. 691, 974 P.2d 661.

{23} For the first element, the State had to prove that Defendant “confined or
transported [Victim] by deception by offering her a ride to Walmart and then taking

her down an empty dirt road.” As Defendant acknowledges, “Kidnapping by

deception can occur when an association between a victim and a defendant begins
voluntarily but the defendant’s actual purpose is other than the reason the victim
voluntarily associated with the defendant.” State v. Simmons, 2018-NMCA-015,
{ 18, 409 P.3d 1030 (internal quotation marks and citation omitted), cert. denied,
2017-NMCERT-___(No. S-1-SC-36767, Dec. 20, 2017). Where a defendant picked
up a victim in his car, saying he would take her home, a jury “could have found that
[a victim] was restrained by deception when [the defendant] changed the intended
destination” from the victim’s house to a remote location. State v. Jacobs, 2000-
NMSC-026, 4 5, 25, 129 N.M. 448, 10 P.3d 127. Thus, for this first element to be
satisfied, Defendant need only have had some purpose other than the reason Victim
voluntarily associated with him. Here, the jury could have believed Victim’s
testimony: She got in the truck because Defendant said he would take her to
Walmart, and Defendant changed the destination without discussion, driving away
from Walmart. Therefore, there was sufficient evidence to satisfy this first element.
{243 Second, the State must have shown that Defendant “intended to inflict a sexual
offense on [Victim].” Defendant makes much of the fact that no sexual offense was
committed, but acknowledges that he “does not have to commit a sexual offense in
order to be guilty of second-degree kidnapping.” A jury may infer, “from evidence

of acts committed at some later point during the commission of a kidnapping, that

the necessary criminal intent existed at the time the victim first was restrained.” State
v. McGuire, 1990-NMSC-067, 4 10, 110 N.M. 304, 795 P.2d 996.

25} Victim testified that after Defendant asked if she would kiss him and she said
no, Defendant tried to kiss her anyway. Victim also testified that after she refused to
kiss him, Defendant touched her breast and tried to rub her back. Finally, Victim
testified that she called and texted her mother, asking for help. From this testimony,
the jury could reasonably have concluded that because Victim did not consent to
Defendant’s advances and Defendant did not honor her refusals, coupled with
Defendant’s act in driving Victim away from her intended destination to a remote
location, Defendant intended to inflict a sexual offense. Viewing the evidence in the
light most favorable to the verdict, the evidence is sufficient to support Defendant’s
conviction, and retrial is therefore permissible.

26; On retrial, the district court may instruct the jury on the definition of sexual
offense by giving the statutory definition of the particular sexual offense or offenses
that form the basis of the State’s theory of the case, or, similar to our uniform jury
instruction for attempt, UJI- 2801 NMRA, by instructing the jury on the essential
elements of the intended crime immediately following the kidnapping instruction.
CONCLUSION

{27} Because we reverse Defendant’s conviction for second-degree kidnapping

and remand to the district court, we do not review Defendant’s argument that the

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district court exceeded its statutory authority by sentencing Defendant to lifetime
parole—an argument to which the State concedes on appeal.

23} ITISSO ORDERED.

MEGAN P. DUFFY; J
WE CONCUR:
. ZAM , Judge
ba
MICHAEL D. BUSTAMANTE, Judge Pro Tempore

July 31, 2019- State of New Mexico v. Juan H. Aguilar, No. A-1-CA-36352

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