State v. Ancira

Decision Date23 March 2022
Docket NumberA-1-CA-38173
Citation517 P.3d 292
Parties STATE of New Mexico, Plaintiff-Appellee, v. Presciliano C. ANCIRA, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Hector H. Balderas, Attorney General, Van Snow, Assistant Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant

BACA, Judge.

{1} Following a jury trial, Presciliano Ancira (Defendant) was found guilty of breaking and entering, contrary to NMSA 1978, Section 30-14-8 (1981) ; attempt to commit breaking and entering, contrary to Section 30-14-8 and NMSA 1978, Section 30-28-1 (1963) ; criminal trespass (unposted) contrary to NMSA 1978, Section 30-14-1(B) (1995) ; and resisting, evading, or obstructing an officer, contrary to NMSA 1978, Section 30-22-1(B) (1981). In this appeal, Defendant argues that (1) the State's amendment of the criminal trespass charge during trial to change the address of the location of the alleged trespass amounts to a new charge in violation of Rule 5-204(A) NMRA ; (2) the uniform jury instruction (UJI) for criminal trespass, UJI 14-1402 NMRA, does not accurately describe the elements of the offense, as set forth in Section 30-14-1(B), and that fundamental error occurred when the district court instructed the jury based on UJI 14-1402 ; (3) the jury instructions for breaking and entering and attempted breaking and entering suffered from fundamental error; (4) the State invited the jury to consider the consequences of its verdict by arguing that Defendant's charges were "serious"; and (5) insufficient evidence supported his conviction for breaking and entering.

{2} We agree that the amendment of the criminal trespass charge during trial amounted to a new charge in violation of Rule 5-204(A) and reverse Defendant's conviction for criminal trespass on that ground. We also hold that UJI 14-1402 "should have known" language is erroneous, and therefore suggest that UJI 14-1402 be modified to conform to the statutory language. Unpersuaded by Defendant's remaining arguments, we affirm.


{3} On the morning of August 15, 2018, Defendant reached through the dog door on the back door to Mr. Johnnie Noblitt's home. Defendant was attempting to unlock the deadbolt of the back door. Mr. Noblitt, who was home, kicked Defendant's arm, and yelled at Defendant. Defendant pulled his arm out from the dog door and ran. Mr. Noblitt opened the door and saw Defendant running away. Mr. Noblitt saw Defendant jump into his neighbor Randy Duran's backyard over a five-foot-high brick wall that separated their back yards. Mr. Noblitt subsequently called the police.

{4} Law enforcement responded, and Officer Martin saw Defendant running through an alley but lost him. Defendant was subsequently located by Mr. Alberto Muniz, who found Defendant passed out and snoring in his bathtub when he got home from work. Mr. Muniz stated that it looked as if his bathroom had been ransacked, and the screen to his bathroom window was on the floor as if someone pushed it in from outside the window. Mr. Muniz called the police, and Defendant was arrested.

{5} Defendant testified that after he ran from the police he entered the home of Mr. Muniz through an unlocked back door. Defendant stated that he went into this yard because it had a cinderblock wall. Defendant denied entering Mr. Muniz's home through the bathroom window. He testified that he would not have gone through the window because of its height and because he was afraid of being seen. However, Mr. Muniz testified that he locked the back door before leaving for work, and that the bathroom window had been forced and broken.

{6} Defendant testified that, after being sober for fourteen months, he smoked methamphetamine on the morning of the incident. After smoking, Defendant became very paranoid and, in his mind, he was trying to escape from people who wanted to rob him. Defendant stated that he was "terrified" and that he was attempting to get somewhere safe by breaking into Mr. Noblitt's home.

{7} Defendant was convicted at trial of breaking and entering into the home of Mr. Muniz; attempted breaking and entering for sticking his arm through Mr. Noblitt's dog door; criminal trespass for the unauthorized entry of Mr. Duran's back yard; and resisting, evading, or obstructing an officer for running from Officer Mitchell, an Alamogordo Police Officer. This appeal followed.

I. Amendment of the Criminal Trespass Charge Amounted to a New Charge Under Rule 5-204(A)

{8} Defendant argues that amending the trespassing charge by changing the address of the location of the alleged trespass from 1000 Dewey to 1002 Dewey amounts to a new charge in violation of Rule 5-204(A). We agree.

{9} We review the application of Rule 5-204 de novo. State v. Stevens , 2014-NMSC-011, ¶ 49, 323 P.3d 901. Rule 5-204(A) states, in pertinent part, that "[t]he court may at any time prior to a verdict cause the complaint, indictment or information to be amended in respect to any such defect, error, omission or repugnancy if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."

{10} Rule 5-204(A) allows a court to amend an information prior to the verdict to correct a defect or error, "but [it] does not allow the [district] court to amend if there is an additional or different offense charged." State v. Roman , 1998-NMCA-132, ¶¶ 9, 11, 125 N.M. 688, 964 P.2d 852. As we explained in Roman , the distinction lies in the difference between an "amendment to an information" and an "amended information." Id. ¶ 12 (internal quotation marks omitted). "An amendment to an information occurs when an otherwise adequate information is supplemented. An amendment to an information does not include the addition of a new charge. An amended information adds a new or different charge. It acts as the filing of a new instrument that supersedes the original." Id. (internal quotation marks and citations omitted).

{11} The State contends here that there was no new charge added, that instead it merely corrected a typographical error in the address where the trespass occurred. The State relies on State v. Lucero , 1968-NMCA-021, ¶¶ 6-7, 79 N.M. 131, 440 P.2d 806, where a change in the address given was held to be the correction of an error that did not prejudice the defendant, and was therefore permissible. We are not persuaded. There are important differences between a case like Lucero , where the defendant was indicted on a single charge of burglary, id. ¶ 1, and this case. In that case, a mistake in the address burglarized was found to be a typographical error, which did not prejudice the defendant. Id. ¶¶ 6-7. In that case, the defendant was able to identify the basis of the accusation from the date and the charge and recognize that the address was a simple error. His trial preparation was not affected. See id.

{12} In this case, however, Defendant was charged with the offense of breaking and entering at the address identified on the criminal information. The alleged "typo" correctly informed Defendant that he also faced the lesser included offense of trespassing at that same address if the jury acquitted him of breaking and entering. There was no reason for Defendant to doubt the accuracy of the address in this case. Defendant was not on notice prior to trial under these facts that the State actually intended to charge a separate count of trespass at a different location. We therefore conclude that the State sought to add a new charge after the close of the evidence.

{13} The record shows that Defendant was prejudiced by the addition of this new charge without adequate notice. See Roman , 1998-NMCA-132, ¶ 13, 125 N.M. 688, 964 P.2d 852 (noting that post-evidence amendments are particularly prejudicial because they add a new charge without giving a criminal defendant sufficient notice). The post-evidence amendment that occurred here is particularly prejudicial because, believing trespass was charged only as a lesser included offense of breaking and entering, Defendant focused his defense on encouraging the jury to find trespass instead of breaking and entering. Defendant mounted no defense to the new charge of trespassing and, indeed, his counsel did not interview the key witness on that charge. Counsel almost certainly would have done so had he been aware the witness was central to an additional charge. Defense counsel was not on notice when he cross-examined the State's newly listed witness that he was being called by the State to testify as the victim of an additional charge of trespass. Under these circumstances, particularly where the two addresses, 1000 and 1002 Dewey, were both locations where Defendant had been during the course of the events leading to the charges filed in this case, we conclude Defendant was prejudiced by the lack of adequate notice of the amended charge against him. See State v. Armijo , 1977-NMCA-070, ¶ 25, 90 N.M. 614, 566 P.2d 1152 ("To permit the jury to convict on the basis of action resulting in personal injury, by adding this charge after the evidence was concluded in a trial where personal injury was not in issue, is prejudice."). Because we conclude that the amendment to the criminal trespass charge violated Rule 5-204(A), we reverse Defendant's conviction as to that count.

II. UJI 14-1402 Does Not Accurately Describe the Mens Rea for Criminal Trespass

{14} Defendant argues that his conviction for criminal trespass should also be reversed, in the alternative, because there is a conflict in the mens rea requirements of the criminal trespass statute, Section 30-14-1(B) and UJI 14-1402.

{15} Defendant argues that the UJI utilizes a lower mens rea requirement than what is statutorily mandated. He points out that the criminal trespass statute requires that a person committing criminal trespass "knowingly enter[ ] or...

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