1997 -NMSC- 47, State v. Carrasco

• Decision Date: 03 September 1997
• Docket Number: No. 23901,23901
• Parties: , 1997 -NMSC- 47 STATE of New Mexico, Plaintiff-Respondent, v. Robert CARRASCO, Defendant-Petitioner.
• Court: New Mexico Supreme Court

Page 1075

946 P.2d 1075

124 N.M. 64, 1997 -NMSC- 47

STATE of New Mexico, Plaintiff-Respondent, v. Robert CARRASCO, Defendant-Petitioner.

No. 23901.

Supreme Court of New Mexico.

Sept. 3, 1997.

T. Glenn Ellington, Chief Public Defender, Susan Gibbs, Assistant Appellate Defender, Santa Fe, for Defendant-Petitioner.

Tom Udall, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, for Plaintiff-Respondent.

OPINION

SERNA, Justice.

¶1 Robert Carrasco was convicted of conspiracy to commit robbery, accessory to assault with intent to commit a violent felony (robbery), accessory to aggravated battery, accessory to attempted robbery, and accessory to false imprisonment. The Court of Appeals reversed Defendant's convictions and remanded for a new trial, holding that at trial, the prosecutor improperly cross-examined Defendant on his post-arrest silence. ¹ The Court of Appeals' opinion did not reach two of the issues raised by Defendant, which Defendant claims affects his retrial. Furthermore, Defendant contends that the Court of Appeals improperly stated the standard of accessory liability to be applied on retrial, and that the Court of Appeals erred when it found sufficient evidence to support Defendant's convictions of accessory to assault with intent to commit a violent felony, aggravated battery and false imprisonment.

¶2 ThisCourt granted Defendant's Petition for Writ of Certiorari and requested briefing on the following issues: (1) whether in determining the sufficiency of the evidence, the Court of Appeals erred in applying the "natural and probable consequence test" in its review of the law of accomplice liability in New Mexico; (2) whether the Defendant's convictions of five separate offenses violate the double jeopardy clause of the New Mexico and United States Constitutions; and (3) whether the trial court properly enhanced Defendant's conspiracy sentence using New Mexico's "old-age enhancement" statute.

FACTS

¶3 On May 26, 1994, Stephen Padron, Mario Moncayo and Defendant drove to an Allsup's Convenience Store in Melrose, New Mexico. Defendant stayed in the car while his two companions entered the store. While in the store, Padron struck the store clerk in the forehead with his fist, knocked her down, and kicked her. The store clerk, Juanelle Gonzales, was sixty-two years of age at the time. Moncayo unsuccessfully attempted to open the cash register. When a truck driver entered the store, Padron and Moncayo ran out of the store, jumped into the waiting car, and drove away with Defendant behind the wheel.

¶4 Defendant, Padron and Moncayo were arrested a short time later. Padron and Moncayo entered into plea agreements, and both testified against Defendant at his trial. Defendant testified that he was intoxicated and that he either went to sleep or blacked-out in the car, knowing nothing of the acts of Padron and Moncayo. According to Defendant's testimony, when Defendant awoke in the car he discovered that the car was parked outside Allsup's, that Padron and Moncayo were inside the store, that they came running out of the store and jumped inside the car, and that he drove away. Defendant admitted driving the car away from the store, but he claimed that he was not aware of the attempted robbery until Padron and Moncayo told him of the attempt while they were driving away. Defendant was found guilty of conspiracy to commit robbery, accessory to assault with intent to commit a violent felony (robbery), accessory to aggravated battery, accessory to attempted robbery, and accessory to false imprisonment. The trial court merged for sentencing Defendant's charges of accessory to assault with intent to commit a violent felony and accessory to aggravated battery.

New Mexico Does Not Apply the Natural and Probable Consequence Test to Determine Accessory Liability.

¶5 Defendant argues that the Court of Appeals, in its opinion below, improperly relied on the doctrine that an accessory may be held liable for all crimes which are the natural and probable consequence of the attempted criminal offense. To the extent that the Court of Appeals' opinion adopts the "natural and probable consequence test" of accessory liability, we reject the Court of Appeals' reliance thereon. However, we agree with the Court of Appeals that there is sufficient evidence in this case to retry the Defendant on each of the foregoing charges, applying the existing uniform jury instruction for accomplice liability. See UJI 14-2822 NMRA 1997.

¶6 In New Mexico, "A person may be charged with and convicted of the crime as an accessory if he procures, counsels, aids or abets in its commission and although he did not directly commit the crime and although the principal who directly committed such crime has not been prosecuted or convicted...." NMSA 1978, § 30-1-13 (1972). A person who aids or abets in the commission of a crime is equally culpable as the principal. State v. Nance, 77 N.M. 39, 46-47, 419 P.2d 242, 247 (1966). Aiding and abetting is not a distinct offense and it carries the same punishment as a principal. Id. at 47, 419 P.2d at 247.

¶7 This Court has held that an accessory must share the criminal intent of the principal. State v. Ochoa, 41 N.M. 589, 599, 72 P.2d 609, 615 (1937). This intent can be inferred from behavior which encourages the act or which informs the confederates that the person approves of the crime after the crime has been committed. Id. at 599, 72 P.2d at 615. Under the New Mexico Uniform Jury Instructions, a defendant may be found guilty as an accessory to a crime other than attempt and felony murder if the state proves to the jury beyond a reasonable doubt that: "(1) The defendant intended that the crime be committed; (2) The crime was committed; [and] (3) The defendant helped, encouraged or caused the crime to be committed." UJI 14-2822. The uniform jury instruction for accessory liability incorporates the intent requirement and correctly states the standard for a finding that a defendant is guilty as an accessory. UJI 14-2822; see also State v. Bankert, 1994 NMSC 051, 117 N.M. 614, 618, 875 P.2d 370, 374.

¶8 Under the natural and probable consequence standard of accessory liability, a defendant is criminally liable for any crime which is the natural and probable consequence of the principal's attempted criminal act. Some jurisdictions have adopted the natural and probable consequence standard of accomplice liability. See People v. Beeman, 35 Cal.3d 547, 199 Cal.Rptr. 60, 68, 674 P.2d 1318, 1326 (1984) (accomplice liability extends to the natural and reasonable consequences of the acts the accessory knowingly and intentionally aids and encourages); Harris v. State, 425 N.E.2d 154, 156 (Ind.1981) (accomplice liability extends to all criminal acts that are a probable and natural consequence of the common plan). This approach to accomplice liability has been criticized, see, e.g., 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.8(b)(1986), and further, the test is inconsistent with the culpability level for accomplice liability established by the Model Penal Code, see Model Penal Code § 2.06(3) cmt. 6(b) (1985) (discussing scope of accomplice's liability). More importantly, this standard is not consistent with the approach that New Mexico applies in accessory liability cases.

¶9 In New Mexico, a jury must find a community of purpose for each crime of the principal. This principle means that a jury must find that a defendant intended that the acts necessary for each crime be committed; a jury cannot convict a defendant on accessory liability for a crime unless the defendant intended the principal's acts. See UJI 14-2822. Alternatively, the natural and probable consequence standard allows a defendant to be convicted for crimes the defendant may have been able to foresee but never intended. Thus, we disavow the natural and probable consequence standard of accessory liability and affirm the intent requirement New Mexico has embodied in its uniform jury instructions for accessory liability.

Sufficient Evidence Exists to Support Defendant's Convictions of Accessory Liability.

¶10 Defendant argues that there was insufficient evidence to support Defendant's convictions for accessory to assault with intent to commit a violent felony (robbery), accessory to aggravated battery, and accessory to false imprisonment, under the New Mexico uniform jury instructions. If there was insufficient evidence, then the charges must be dismissed as a matter of law. See State v. Garcia, 114 N.M. 269, 275-76, 837 P.2d 862, 868-69 (1992) (reversing first-degree murder conviction on grounds of insufficient evidence and barring re-trial on double jeopardy grounds). To reverse a conviction for lack of evidence, an appellate court determines

whether any rational jury could have found each element of the crime to be established beyond a reasonable doubt. This does not involve substituting the appellate court's judgment for that of the jury in deciding the reasonable-doubt question, but it does require appellate court scrutiny of the evidence and supervision of the jury's fact-finding function to ensure that, indeed, a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction.

Garcia, 114 N.M. at 274, 837 P.2d at 867. Applying UJI 14-2822, we affirm the Court of Appeals' holding that a rational jury could find, based on the evidence presented at trial, that Defendant is guilty of accessory to assault with intent to commit a violent felony (robbery), aggravated battery, and false imprisonment.

¶11 "In reviewing a claim of insufficient evidence, this Court will 'view the evidence in the light most favorable to supporting the verdict and resolve all conflicts and indulge all inferences in favor of upholding the verdict.' " Bankert, 1994 NMSC 051, 117 N.M. at 617, 875 P.2d at 373 (citing State v. Hernandez, 1993 NMSC 007, 115 N.M. 6, 26, 846 P.2d 312, 332...