701 P.2d 374 (N.M.App. 1985), 6000, State v. Fish

Docket Nº:6000.
Citation:701 P.2d 374, 102 N.M. 775, 1985 -NMCA- 036
Opinion Judge:BIVINS, Judge.
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Mark Douglas FISH, Defendant-Appellant.
Attorney:[102 N.M. 777] Mary Jo Snyder, Santa Fe, for defendant-appellant. Paul G. Bardacke, Atty. Gen., Charles D. Noland, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
Judge Panel:ALARID and MINZNER, JJ., concur.
Case Date:April 09, 1985
Court:Court of Appeals of New Mexico

Page 374

701 P.2d 374 (N.M.App. 1985)

102 N.M. 775, 1985 -NMCA- 036

STATE of New Mexico, Plaintiff-Appellee,

v.

Mark Douglas FISH, Defendant-Appellant.

No. 6000.

Court of Appeals of New Mexico

April 9, 1985

Certiorari Denied May 31, 1985.

Page 375

[Copyrighted Material Omitted]

Page 376

[102 N.M. 777] Mary Jo Snyder, Santa Fe, for defendant-appellant.

Paul G. Bardacke, Atty. Gen., Charles D. Noland, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

Convicted of attempted second degree murder, criminal sexual penetration (CSP) in the second degree, while armed with a deadly weapon, to wit: a knife, and kidnapping, defendant appeals. The jury acquitted defendant of armed robbery. The state had dismissed prior to trial a count for aggravated battery. Defendant raises nine issues in his docketing statement. It came to the attention of this court that the record on appeal was incomplete, and after holding hearings to determine if the record could be reconstructed, we reversed because of an insufficient record and remanded for a new trial. The supreme court granted certiorari, State v. Fish, 101 N.M. 329, 681 P.2d 1106 (1984), and reversed this court, holding the record was sufficient for review and also deciding one of defendant's issues. The supreme court decided that evidence of the victim's prior sexual activity was inadmissible, and remanded to this court to address the remaining issues.

In his brief defendant raises the following five issues:

1. Whether the court erred in refusing defendant's requested instructions on CSP in the third degree and on false imprisonment.

2. Whether the court abused its discretion in allowing only thirty minutes for closing argument for each side.

3. Whether the court erred in responding to a jury request made during deliberations by giving an additional instruction defining the term "hold for service."

4. Whether the verdict of guilty of kidnapping is supported by the evidence.

5. Whether the court erred in failing to grant a mistrial upon the prosecution's allegations of recent fabrication by a defense witness, after the prosecutor agreed not to raise the issue.

Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976).

We hold the court erred in refusing to give defendant's requested instructions covering third degree CSP and false imprisonment. Because a new trial is required on second degree CSP and the kidnapping counts, we discuss the remaining issues since they may arise on retrial. We also discuss those issues as they bear on the attempted second degree murder conviction. Because our disposition does not affect the attempted second degree murder conviction, we affirm on that count.

FACTS

That defendant and the victim had sexual intercourse is undisputed. Defendant admitted it, but claimed it was consensual. The victim told a different story.

The victim and defendant were friends and lived in the same apartment complex. The evening before the alleged rape, defendant and the victim had gone out for a drink and returned to the victim's apartment, where defendant slept. Defendant testified that they had sex; the victim denied it. Defendant lived in the apartment below with his parents, and defendant's sister and her husband lived in the apartment adjacent to the victim.

The next day, January 23, 1982, defendant helped the victim paint her apartment. Afterwards they went to the Amigo Bank

Page 377

[102 N.M. 778] to withdraw $30 from the victim's account, which she then gave to defendant. He characterized this as payment for painting; she said it was a loan.

That evening defendant returned to the victim's apartment. According to the victim, while she was changing clothes defendant raped her at knife point. He then tied her arms with her brassiere and a piece of rope and tried to drown her in the bathtub. During the struggle the victim chipped her teeth. She convinced defendant not to kill her, and to cut the bindings. Later the victim demonstrated to defendant how to operate her Amigo card. Defendant accused her of lying about how to use the card. He then drove the victim to the Amigo Bank, where she withdrew $50, which defendant took from her. He then drove her home, requesting a two-hour head start before she reported the incidents.

While admitting to having sex, which he claimed was consensual, defendant denied any of the other acts other than going to the Amigo Bank to get money, which defendant claimed was a loan. Defendant's theory was that the victim made up the story to get even because of unrequited love. He rejected the victim for another woman. Defendant claimed the victim made up the story and used details strikingly similar to an account of a rape of defendant's fiancee several weeks earlier by an unknown assailant, which the fiancee recounted to the victim.

1. Refusal of tendered instructions.

Defendant tendered Uniform Jury Instructions, Criminal covering CSP in the third degree and false imprisonment as lesser included offenses, see NMSA 1978, UJI Crim. 50.01, 9.43 and 4.00 (Repl.Pamp.1982), on the basis that the evidence supported these lesser included offenses. The court denied the request.

(a) Third degree CSP.

CSP in the second degree, NMSA 1978, Section 30-9-11(B) (Repl.Pamp.1984) lists five aggravating factors, two of which may have been relied on by the state in this case: criminal sexual penetration perpetrated "(4) in the commission of any other felony"; or "(5) when the perpetrator is armed with a...

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