State v. Griego
| Decision Date | 16 May 2023 |
| Docket Number | A-1-CA-39453 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL ANGELO GRIEGO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Ross C. Sanchez District Court Judge
Raul Torrez, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender Thomas J. Lewis Assistant Appellate Defender Santa Fe, NM for Appellant
{¶1} Defendant appeals a jury's conviction for five counts of criminal sexual penetration of a minor (CSPM), contrary to NMSA 1978, Section 30-9-11 (2003, amended 2009), and three counts of kidnapping with intent to commit a sexual offense, contrary to NMSA 1978, Section 30-4-1(A)(4) (2003). We remand for the district court to vacate Defendant's three kidnapping convictions but otherwise affirm.
{¶2} Defendant raises five issues on appeal. We understand Defendant's double jeopardy arguments to relate solely to alleged inadequacies in the kidnapping counts. We do not address these arguments because in this opinion, we conclude that the kidnapping convictions were not supported by sufficient evidence and remand for those convictions to be vacated. As we otherwise find no error, we also do not address Defendant's cumulative error argument. We address Defendant's remaining arguments in turn.
{¶3} To support a guilty verdict for kidnapping, the evidence must demonstrate that the "'restraint or movements'" were not "'merely incidental to another crime. '" State v. Tapia, 2015-NMCA-048, ¶ 29, 347 P.3d 738 (alteration omitted) (quoting State v. Trujillo, 2012-NMCA-112, ¶ 1, 289 P.3d 238). We evaluate the totality of the circumstances to determine whether the restraints and movements were incidental to another crime, including whether (1) the nature of the restraint increased the defendant's culpability beyond that inherent to the underlying crime; (2) the restraint "was any longer or greater than that necessary to commit" the underlying crime; and (3) the restraint increased the risk or severity of the harm that is "inherent to the underlying crime." See Tapia, 2015-NMCA-048, ¶ 31. In the present case, Defendant argues that the evidence showed only that Defendant "locked the bedroom door and held [Victim] immobilized on the bed during each episode of abuse." No evidence showed that the nature of these restraints (1) increased Defendant's culpability beyond the CSPM, (2) were longer than necessary to commit the CSPM, or (3) increased the harm to Victim or the severity of the assault. See id. The State concedes that the evidence was insufficient to support the kidnapping convictions. "While we are not required to accept the [s]tate's concession," see State v. Salazar, 2023-NMCA-026, ¶ 7,__P.3d__, we agree that the evidence did not support kidnapping charges separate from the CSPM charges.
{¶4} Defendant contends that the approximately twelve-and-a-half-year delay in perfecting the appeal violated his right to due process. In considering whether appellate delay has violated due process, we first "evaluate the impact of the appeal period on the appellant" to determine whether there has been any prejudice. State v. Garcia, 2019-NMCA-056, ¶ 46, 450 P.3d 418. Defendant urges us to apply the speedy trial analysis, "at least by analogy," and argues that the length of delay arising entirely from his counsel's negligence establishes the requisite prejudice. We decline to depart from our reasoning in Garcia, which rejected the speedy trial framework in the context of appellate delay. See id. ¶ 44.
{¶5} Instead, this Court identified "two potential forms of prejudice that courts evaluating appellate delay commonly consider: (1) prejudice to a defendant's ability to assert [their] arguments on appeal, and (2) prejudice to a defendant's right to defend [themselves] in the event of retrial or resentencing." Id. ¶¶ 44, 46. Defendant acknowledges that the ability to pursue the present appeal remedied the first form of prejudice, but argues that he will be prejudiced if a new trial is granted because the delay "would make it nearly impossible to locate and subpoena witnesses" and he has lost "family ties, friendships, and employment connections that could help him make his case to a jury." Because our holding will not result in retrial, Defendant has not established prejudice resulting from the ability to defend himself on retrial. See State v. Vigil, 2021-NMCA-024, ¶ 27, 489 P.3d 974 ().
{¶6} We last address Defendant's claim that he received ineffective assistance of counsel. "In order for efendant to prevail on [an] ineffective assistance of counsel claim, [the defendant] must first demonstrate error on the part of [the] attorney and then show that the error prejudiced [the] defense." State v. Dombos, 2008-NMCA-035, ¶ 39, 143 N.M. 668, 180 P.3d 675. On direct appeal, "we evaluate the facts that are part of the record" and "[i]f facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition." State v. Jackson, 2020-NMCA-034, ¶ 53, 468 P.3d 901 (alteration, internal quotation marks, and citation omitted). Defendant argues that in addition to failing to file the notice of appeal, defense counsel was ineffective for failing to object to certain testimony and failing to submit a sentencing memorandum to attempt to mitigate the district court's sentence.
{¶7} Having already addressed Defendant's failure at this stage to demonstrate prejudice arising from the failure to file a notice of appeal, we further conclude that Defendant has not identified prejudice arising from the failure to file a sentencing memorandum. As the State notes, Defendant does not articulate what information defense counsel should have included in a sentencing memorandum in order to establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Dombos, 2008-NMCA-035, ¶ 39 (internal quotation marks and citation omitted); see also id. (). Because Defendant has not established prejudice arising from these asserted errors, we turn to Defendant's remaining arguments related to the trial testimony.
{¶8} Defendant argues that he was prejudiced by defense counsel's errors because counsel did not object to (1) testimony that Defendant contends was improper lay opinion testimony, (2) testimony that Defendant asserts improperly bolstered Victim's testimony, and (3) testimony that Defendant maintains lacked foundation. Defendant additionally contends that each error was a plain error and faults both counsel and the district court. Defendant's contentions focus on two witnesses, the Children, Youth and Families Department investigator and the Sexual Assault Nurse Examiner (SANE). We consider each asserted instance of plain error and determine whether defense counsel's performance fell "below an objective standard of reasonableness" and/or whether any error caused prejudice to Defendant's defense. See Dombos, 2008-NMCA-035, ¶ 39 (internal quotation marks and citation omitted); Garcia, 2019-NMCA-056, ¶ 10 ().
{¶9} First, Defendant argues that both witnesses offered opinions based on their direct observations (lay opinion) and their experience and training (expert opinion), but defense counsel failed to object when the State did not qualify either witness as an expert. Defendant does not, however, identify specific testimony from either witness that rose to the level of opinion requiring expert qualifications or demonstrate a reasonable probability that these witnesses would not have qualified as experts had the State offered them as such. Defendant therefore demonstrates neither error nor prejudice. See Jackson, 2020-NMCA-034, ¶ 60 (); State v. Gwynne, 2018-NMCA-033, ¶ 33, 417 P.3d 1157 ().
{¶10} Second, Defendant argues that both witnesses bolstered Victim's testimony and defense counsel failed to object. The identified testimony, Defendant maintains "indirectly commented on the reliability of [Victim]'s statements and identified [Defendant] as [Victim]'s abuser based solely on [Victim]'s disclosures." It is well established that "[i]ncidental verification of [a] victim's story or indirect bolstering of [a victim's] credibility . . . is not by itself improper [because a]ll testimony in the prosecution's case will tend to corroborate and bolster the victim's story to some extent." State v. Alberico, 1993-NMSC-047, ¶ 89, 116 N.M. 156,...
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