State v. Johnson

This decision of the Supreme Court of New Mexico was not selected for publication in
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: July 2, 2020

No. S-1-SC-37285

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

NIGEL JOHNSON,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cristina Jaramillo, District Judge

Bennett J. Baur, Chief Public Defender
MJ Edge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General
Marko David Hananel, Assistant Attorney General
Santa Fe, NM

for Appellee

DECISION

VIGIL, Justice.

{1} Defendant Nigel Johnson was convicted of first-degree felony murder and
conspiracy to commit robbery for his participation in a late-night beating and robbery
that left one man dead. On direct appeal, Defendant argues that his convictions should
be reversed because they were not supported by sufficient evidence and the jury was
not properly instructed on the conspiracy charge. He further claims that he was
punished in violation of the principles of double jeopardy.
I. BACKGROUND

{2} The pertinent evidence at trial consisted of Defendant’s statement to police,
testimony from two eyewitnesses, Hope Romero Curry and Juan Castellano, Romero
Curry’s 9-1-1 call, and convenience store surveillance footage showing Defendant and
his companions together near the time and place of the attack. The evidence tells the
following story.

{3} Shortly before 2 a.m., three young men left a convenience store and crossed the
street where they encountered an older man on the sidewalk. One of the young men
stood as lookout while first one, then another member of the group beat the older man
by kicking and punching him. As the attack came to an end, one of the young men
searched the victim’s pockets and stole the victim’s money before all three ran from the
scene. The victim died of the injuries he sustained during the attack.

{4} Romero Curry and Castellano witnessed the attack as they were driving past.
Romero Curry called 9-1-1 while the young men fled. In that call, which was admitted
into evidence at trial, Romero Curry described the offenders as three young men, one
wearing a red and white shirt and one wearing a black shirt with a white shirt
underneath, a black hat, jeans, and a black backpack. She was unable to describe the
third man’s clothing during the 9-1-1 call, but she testified at trial that he was also
wearing black.

{5} The surveillance video footage from the convenience store shows three men
substantially matching Romero Curry’s description of the attackers standing in line to
make a purchase in the minutes before the attack. One of those men was identified as
Defendant.

{6} Defendant’s statement to police corroborates much of the eyewitnesses’
testimony. He told police that he was with two others at the convenience store around
the time of the attack. Defendant said that after leaving the convenience store, the
group found the victim lying on the ground unconscious. He explained that one of his
companions searched the victim’s pockets and stole his money, and then the three ran
off when a woman starting yelling at them.

{7} Based on this evidence, the jury convicted Defendant of first-degree felony
murder, contrary to NMSA 1978, Section 30-2-1(A)(2) (1994); second-degree murder,
contrary to NMSA 1978, Section 30-2-1(B) (1994); robbery, contrary to NMSA 1978,
Section 30-16-2 (1973); and conspiracy to commit robbery, contrary to NMSA 1978,
Sections 30-16-2, 30-28-2 (1979). The district court properly vacated Defendant’s
second-degree murder and robbery convictions on double jeopardy grounds. See State
v. Torrez, 2013-NMSC-034, ¶ 15, 305 P.3d 944; State v. Cooper, 1997-NMSC-058, ¶¶
53, 57, 124 N.M. 277, 949 P.2d 660.

{8} Defendant was sentenced to life in prison and appeals his convictions directly to
this Court pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-
102(A)(1) NMRA. Because the questions of law in this appeal are sufficiently answered
by New Mexico precedent and substantial evidence disposes of the issues, we exercise
our discretion under Rule 12-405(B)(1)-(2) NMRA to issue this non-precedential
decision.

II. DISCUSSION

{9} Defendant makes three arguments on appeal: (1) his convictions are not
supported by sufficient evidence; (2) the jury was improperly instructed on the
conspiracy charge, resulting in an implied acquittal of that offense; and (3) the principles
of double jeopardy preclude his punishment for both felony murder and conspiracy. For
the following reasons, we reject Defendant’s arguments and affirm his convictions and
sentences.

A. Sufficiency of the Evidence

{10} Defendant asserts that the evidence at trial was insufficient to prove that (1) he
was involved in the beating and robbery and (2) he and his companions had entered
into a conspiracy. Our analysis for sufficiency of the evidence proceeds as follows:

We review whether substantial evidence of either a direct or circumstantial
nature exists to support a verdict of guilt beyond a reasonable doubt with
respect to every element essential to a conviction. Evidence is viewed in
the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.
In particular, New Mexico appellate courts will not invade the jury’s
province as fact-finder by second guessing the jury’s decision concerning
the credibility of witnesses, reweighing the evidence, or substituting its
judgment for that of the jury. So long as a rational jury could have found
beyond a reasonable doubt the essential facts required for a conviction,
we will not upset a jury’s conclusions.

State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (alterations,
internal quotation marks, and citations omitted). We address each of Defendant’s
arguments in turn.

1. Identity evidence

{11} First, Defendant claims that the State’s evidence failed to identify him as one of
the young men seen attacking the victim on the night of the killing. He asks this Court to
vacate the jury’s determination that he participated in the attack because Romero
Curry’s description of the color of the perpetrators’ clothing differed from Castellano’s
memory of their clothing. Defendant further asserts that the investigating officer in the
case improperly focused on Defendant and his companions because one of the men
appeared in the surveillance footage wearing a red shirt with white lettering, even
though Romero Curry had described a man in a red shirt with black lettering.
{12} Defendant is mistaken; Romero Curry never testified that one of the men was
wearing a red shirt with black lettering. In fact, she described a man wearing a red and
white shirt in her 9-1-1 call. She specifically said that one man was wearing a red and
white shirt and one man was wearing a black shirt with a white shirt underneath, a black
hat, jeans, and a black backpack. At trial, Romero Curry added that the third man was
wearing black. Castellano testified that he saw one man in red, one in black with a
backpack, and one in white. All told, Defendant requests reversal of both convictions
based on slight inconsistencies in the eyewitnesses’ descriptions of the group’s clothing.

{13} The State responds with a persuasive recitation of compelling evidence
identifying Defendant as one of the attackers. The State notes that Defendant’s own
statements to police corroborate the eyewitnesses’ testimony. Defendant said he was at
the convenience store around the time of the attack, which is confirmed by the store’s
surveillance footage. According to Defendant, after leaving the convenience store, he
and two others crossed the street where they came upon the victim. Defendant said that
one of his companions searched the victim’s pockets and took money from the victim
before the three ran off after a lady yelled at them. This narrative corresponds with
Romero Curry’s testimony and statement to the 9-1-1 operator that she saw three
young men cross the street from the convenience store, beat an older man to death, rob
him, and run off when they saw her calling the police.

{14} The only material dispute between the accounts of the eyewitnesses and
Defendant is whether the victim was already dead when the three men encountered
him. Defendant claims the victim was lying unconscious on the ground when the group
reached him. Romero Curry said that she watched first one, then two men beat the
victim for several seconds before the victim fell to the ground.

{15} The jury was faced with this factual dispute and, in finding Defendant guilty, must
have credited the eyewitnesses’ accounts and the State’s other evidence demonstrating
that Defendant was present and participated in the attack. We will not “second-guess[]
the jury’s decision concerning the credibility of witnesses, reweigh[] the evidence, or
substitut[e our] judgment for that of the jury.” Garcia, 2011-NMSC-003, ¶ 5 (internal
quotation marks and citation omitted). Defendant fails to establish that a rational jury
could not have found that he was part of the group of young men who fatally attacked
and robbed the victim. See id. For this reason, we will not reverse Defendant’s
convictions based on a lack of identity evidence. We turn now to Defendant’s second
argument alleging insufficient evidence to prove conspiracy.

2. Evidence supporting the conspiracy conviction

{16} Defendant argues that the State failed to present sufficient evidence to support
the finding of an agreement among Defendant and his companions to rob the victim.
The jury was instructed to find Defendant guilty of conspiracy if it believed the State
proved beyond a reasonable doubt that (1) “[D]efendant and another person by words
or acts agreed together to commit [a felony]” and (2) “[D]efendant and the other person
intended to commit [that felony].”1

{17} Conspiracy may be proved by circumstantial, inferential evidence. State v.
Gallegos, 2011-NMSC-027, ¶ 26, 149 N.M. 704, 254 P.3d 655 (“A conspiracy may be
established by circumstantial evidence. Generally the agreement is a matter of
inference from the facts and circumstances.” (internal quotation marks and citation
omitted)). A conspiratorial agreement “may be shown to exist by acts which
demonstrate that the alleged co-conspirator knew of and participated in the scheme.” Id.
(internal quotation marks and citation omitted).

{18} In this case, the State presented circumstantial evidence which permitted the
reasonable inference that Defendant and his companions were engaged in a conspiracy
to rob the victim. The three young men left the convenience store together and crossed
to the same side of the street as the victim. Romero Curry testified that she watched
one member of the group immediately attack the victim while the other two stood farther
away. According to Romero Curry, the young man standing farthest away seemed to be
playing the role of lookout. Neither of the two onlookers attempted to stop the beating,
and one ultimately joined the attack. According to Castellano, as one man reached into
the victim’s pockets, the others told him to “hurry up and let’s go.” Both eyewitnesses
testified that all three men fled the scene together after the attack. “[I]ndulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the verdict,”
Garcia, 2011-NMSC-003, ¶ 5 (internal quotation marks and citation omitted), we
conclude that this evidence was sufficient to support the jury’s finding that Defendant
had agreed with others to rob the victim.

B. Instructional Error

{19} The conspiracy instruction given to the jury in this case erroneously omitted
robbery as one of the possible intended felonies underlying the conspiracy charge. The
jury was instructed to find conspiracy if it determined that Defendant and another
“agreed together . . . [and] intended to commit second degree murder and/or voluntary
manslaughter and/or first degree murder (felony murder)[.]” Defendant argues that the
omission of robbery in this instruction resulted in an implied acquittal of the conspiracy
charge, despite the jury’s return of a special verdict specifically finding Defendant guilty
of conspiracy to commit robbery as charged in the indictment.

{20} This issue was not preserved because Defendant did not object to the faulty
conspiracy instruction at trial. See Rule 12-321(A) NMRA (“To preserve an issue for
review, it must appear that a ruling or decision by the trial court was fairly invoked.”). We
review unpreserved arguments for fundamental error. See State v. Barber, 2004-
NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. Defendant makes no attempt in his brief to

1The conspiracy instruction the jury received erroneously failed to list robbery as one of the possible felonies
underlying the conspiracy. However, the jury was instructed on the elements of robbery and returned a special
verdict specifically convicting Defendant of conspiracy to commit robbery as charged in Count Three of the
indictment.
argue that the State’s failure to include robbery in the conspiracy instruction resulted in
fundamental error. We will not construct Defendant’s arguments for him. Accordingly,
we decline to review this issue. See State v. Dickert, 2012-NMCA-004, ¶ 35, 268 P.3d
515 (explaining that appellate courts need not review for fundamental error absent the
party’s development of that argument). We now turn to Defendant’s argument that his
convictions and sentences violate double jeopardy.

C. Double Jeopardy

{21} Defendant alleges that his convictions of first-degree felony murder and
conspiracy to commit robbery violate the principles of double jeopardy. Constitutional
double jeopardy protections prohibit multiple punishments for the same offense. U.S.
Const. amend. V (“No person shall . . . be subject for the same offense to be twice put
in jeopardy of life or limb[.]”); N.M. Const. art. II, § 15 (“No person shall . . . be twice put
in jeopardy for the same offense[.]”). Defendant argues that he has been punished twice
for the same conduct of robbing the victim who then died. We reject Defendant’s
contention that his criminal conduct in violation of the statutes prohibiting first-degree
felony murder and conspiracy to commit robbery was unitary.

{22} Our first question in a multiple punishment double jeopardy analysis is “whether
the conduct underlying the offenses is unitary, i.e., whether the same conduct violates
both statutes.” Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223.
To determine whether conduct is unitary, we “look[] for an identifiable point at which one
of the charged crimes had been completed and the other not yet committed.” State v.
DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61. A conspiracy is complete
at the time of the agreement to commit a felony, State v. Deaton, 1964-NMSC-062, ¶ 5,
74 N.M. 87, 390 P.2d 966, while felony murder is complete when an offender commits
second-degree murder during the commission of a felony. State v. Frazier, 2007-
NMSC-032, ¶ 9, 142 N.M. 120, 164 P.3d 1; see § 30-2-1(B).

{23} In this case, Defendant’s conduct in violation of the statutes at issue was not
unitary because the conspiracy was complete before the robbery underlying the felony-
murder conviction began. An agreement to commit a crime must necessarily precede
the commission of that crime. Because we conclude that his conduct was not unitary,
Defendant’s convictions and sentences do not violate the principles of double jeopardy.

III. CONCLUSION

{24} For the reasons stated herein, we reject Defendant’s arguments urging reversal
of his convictions on the basis of insufficient evidence and instructional error, and we
conclude that Defendant’s punishment does not violate the principles of double
jeopardy. Accordingly, we affirm Defendant’s convictions and sentences.

{25} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice
WE CONCUR:

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice