State v. Arias

• Decision Date: 20 December 2016
• Docket Number: NO. 34,440,34,440
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. REY ANTONIO ARIAS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. REY ANTONIO ARIAS, Defendant-Appellant.

NO. 34,440

COURT OF APPEALS OF THE STATE OF NEW MEXICO

December 20, 2016

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.Please seeRule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

James Waylon Counts, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Charles J. Gutierrez, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kimberly Chavez Cook, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

VANZI, Judge.

{1}DefendantRey Antonio Arias, a youthful offender who was found not amenable to treatment, appeals from jury verdicts finding him guilty of seven charges related to an incident in which he and an acquaintance allegedly broke into Maria Diaz's (Victim) home and brutally attacked her.Defendant raises nine issues on appeal: (1) there was insufficient evidence for a jury to convict him of first degree kidnapping; (2) if kidnapping is reversed, there was insufficient evidence of false imprisonment; (3)Defendant's convictions for aggravated burglary and breaking and entering violate double jeopardy; (4) the jury instructions for aggravated burglary were improper because the jury was not required to find that a knife Defendant brought to Victim's home was a deadly weapon; (5) there was insufficient evidence that Defendant was armed with a deadly weapon, as required by the aggravated burglary statute; (6) it was fundamental error for the State to modify its theory of aggravated burglary in the jury instructions from its theory in the indictment; (7)Defendant's third degree tampering with evidence conviction should be reduced to a fourth degree felony because the jury instructions did not specify whether the tampering was related to a first or second degree felony; (8) there was insufficient evidence that a pipe found on Defendant during the search incident to arrest contained residue of a synthetic cannabinoid; and (9)the district court erred when it found Defendant not amenable to treatment.Unpersuaded, we affirm in all respects.

BACKGROUND

{2} On March 25, 2013, at around 2:00 a.m., Defendant, 17, and Justin Riley, 19, burglarized Victim's home.Defendant was charged as a youthful offender with nine counts relating to the burglary, including: (1) kidnapping, contrary to NMSA 1978, Section 30-4-1(2003);(2) aggravated burglary, contrary to NMSA 1978, Section 30-16-4(C)(1963);(3) aggravated battery, contrary to NMSA 1978, Section 30-3-5(C)(1969);(4) breaking and entering, contrary to NMSA 1978, Section 30-14-8(1981);(5) unlawful taking of a motor vehicle, contrary to NMSA 1978, Section 30-16D-1(A)(1)(2009);(6) conspiracy to commit breaking and entering, contrary to NMSA 1978, Section 30-28-2(A)(1979)andSection 30-14-8;(7) tampering with evidence, contrary to NMSA 1978, Section 30-22-5(2003);(8) interference with communications, contrary to NMSA 1978, Section 30-12-1(1979); and (9) possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A)(2001).A jury acquitted Defendant of aggravated battery and interference with communications but convicted him of the remaining charges.The district court found that Defendant was not amenable to treatment and sentenced him to thirty-five years and six months of incarceration, less one day, but suspended twelve years of the sentence.The evidence at trial was as follows.

{3}Defendant testified that he was acquainted with Riley through Defendant's brother.Defendant testified that he had done yard work at Victim's house, and on one occasion, had brought Riley with him to help.Three weeks before the burglary, and a few days after assisting Defendant at Victim's house, Riley suggested that they rob Victim.On the night of the burglary, Defendant needed money and sought Riley's aid in stealing from Victim.The two then walked to Victim's house.Defendant took a knife with him, and Riley had a stick.

{4}Defendant testified that he entered Victim's house by prying open a rear bathroom window with his knife.After gaining entry, Defendant opened the front door to let Riley in, and he observed Victim sleeping in her bedroom.Defendant testified that Riley was still in the living room when he went to Victim's computer room to steal her computer.Defendant testified that, as he was leaving with the computer, Riley handed him Victim's purse, which Defendant went through to steal cash.According to Defendant, while he was going through the purse, Riley discovered keys to Victim's truck and a bucket of coins.Defendant then kicked open the back door, put the computer in Victim's truck, and went back into the house.Defendant alleges that, once back inside the house, he remained in the living room and never went inside the bedroom.Defendant further claims that he heard Victim scream and the sound of things moving in the bedroom.Defendant and Riley eventually fled Victim's house in her truck.

{5} Victim also testified at the trial.According to Victim, at the time of the burglary, she was sleeping in her bedroom and was abruptly awakened by being hit multiple times on her head.She testified that it was dark and she did not know whether Defendant or Riley was her attacker.Victim bled onto her pillow and screamed during the attack.Victim testified that her attacker tied up her wrists and one foot with the cord of her cell phone charger.Victim testified that at that point in the incident, she heard only one voice but observed shadows and movement.Victim also testified that the attacker left her bedroom and went into the living room, at which point she heard two voices mumbling to each other.Her attacker then returned to her bedroom and told her "we are going to put you in the bathroom."Victim was placed in the bathroom and told not to move.The bathroom door was closed, and her bed, oxygen tank, and night stand were pushed against it.According to Victim, as she was being put in the bathroom, she saw a second person's shadow on the other side of her bed.Furthermore, Victim testified that she knew Defendant and was familiar with his voice because he had done yard work for her; nevertheless, she did not recognize his voice during the attack.Victim stayed in the bathroom until she heard her truck being driven away.She then pushed against the bathroom door with the left side of her body and was eventually able to escape after five to ten minutes of shouldering the door.

{6} After leaving Victim's house, Defendant went to his friend Fabian Romero's house, which was about five blocks from Victim's property.Upon realizing Victim's stolen truck had been tracked by police and seeing officers approaching him, Defendant left Romero's house.Defendant acknowledged that he removed the license plate from Victim's truck, crumbled it, and discarded it under Romero's house, and then hid the keys elsewhere on the property.Defendant next went to his girlfriend's home and subsequently learned Romero had been taken by police.Defendant then called 911 to turn himself in.

{7} Deputy Luis Herrera made contact with Defendant and interviewed him.Defendant maintained that he never hit Victim and did not intend to kidnap or restrain her, although he admitted to the burglary and theft.During the police investigation, Deputy Herrera discovered a stick in Victim's truck.Deputy Louis Santiago found Defendant's knife two blocks from Victim's property.Blood was found on the knife, and a forensic scientist who was qualified as an expert in DNA concluded that, "to a reasonable degree of scientific certainty," the blood came from Victim.The expert additionally testified that she found a mixture of DNA on the handle of the knife and concluded that Defendant"cannot be eliminated as a possible source of the major DNA profile resolved from that mixture, and that [Victim] and [Riley] are eliminated as contributors to that mixture."Deputy Sam Montoya testified that Victim's blood was found in her bedroom and not anywhere else in her house.In addition, Deputy Herrera testified that he discovered a pipe that had drug residue on it after searching Defendant incident to his arrest.

DISCUSSION

Sufficient Evidence of Kidnapping {8}Defendant first argues that there was not sufficient evidence to convict him for kidnapping.Specifically, Defendant claims that there was insufficient evidence to support a conviction for kidnapping under a principal theory because "he did not participate in the restraint or confinement" of Victim.Defendant further contends that there was insufficient evidence of kidnapping under an accessory liability theory because he did not share Riley's intent to kidnap Victim.Defendant also argues that there was insufficient evidence of a kidnapping by either Defendant or Riley.We are not persuaded.

{9}"The test for sufficiency of the evidence is 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. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056(internal quotation marks and citation omitted).The reviewing court"view[s] the evidence 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."State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.We disregard all evidence and inferences that support a different result.SeeState v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.In addition, "[t]o determine...