State v. Kenneth
| Decision Date | 12 November 2015 |
| Docket Number | NO. 33,281,33,281 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. ERIC KENNETH, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 SAN JUAN COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
for Appellee
Jorge A. Alvarado, Chief Public Defender
Sergio Viscoli, Appellate Defender
David Henderson, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} By his own account, Defendant Eric Kenneth first saw Leilani Kohles (Victim), doing lunges in front of her car at a gas station in Shiprock, New Mexico, on the evening of November 9, 2011. Thirty to forty-five minutes later, he was tailing her on a stretch of highway outside of Farmington, New Mexico, flashing the high beams on his work truck to signal her to pull over. He would later testify that Victim was driving erratically, and his actions were motivated out of concern for public safety. But Defendant's stated motive for stopping Victim was contested at trial and is in doubt.
{2} The events that followed resulted in criminal charges for impersonating a police officer, kidnapping, aggravated battery, and criminal sexual contact with a deadly weapon (CSC). A jury convicted Defendant on all counts except aggravated battery. Defendant now appeals, asserting that (1) there was insufficient evidence that he committed CSC while armed; (2) the jury instructions were inadequate, resulting in fundamental error; and (3) trial counsel was ineffective in failing to request certain instructions. We affirm. There are some factual disputes about the testimony below. Because this is a memorandum opinion and because the parties are familiar with the case, we address those disputes as they arise in connection with our analysis of the issues on appeal.
{3} Defendant argues that the State failed to present sufficient evidence that he committed CSC "in the cab of his truck while armed with and through the use of a deadly weapon that was, at the time, locked in the trunk of [Victim's] car." The standard of review for sufficiency of the evidence is highly deferential. State v. Dowling, 2011-NMSC-016, ¶ 20, 150 N.M. 110, 257 P.3d 930. We view the evidence "in the light most favorable to the [s]tate, resolving all conflicts and making all permissible inferences in favor of the jury's verdict." Id.
{4} For Defendant to be found guilty of CSC, the State had to prove, in relevant part, that:
The trial centered on the competing testimony of the only two witnesses at the scene: Victim, who described a frightening roadside sexual assault, and Defendant, who testified that any sexual contact was invited by Victim. The jury apparently credited Victim's version of events when it convicted Defendant on all counts except aggravated battery. "Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject efendant's version of the facts." State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.3d 829. Thus, we turn to Victim's testimony in our review for sufficient evidence that Defendant was armedwhen he touched Victim's unclothed breasts, and we "disregard all evidence and inferences to the contrary." Id.
{5} In short, Victim testified that Defendant repeatedly flashed his lights to get her to pull over, and then he approached her driver side window. Defendant never actually told Victim he was a police officer, but his actions indicated that he was one. His white truck was similar to the police trucks driven in Victim's home state of Texas, and any uniform and badge would have been concealed beneath Defendant's heavy coat. Defendant asked Victim for her license and registration, and he asked whether she had been drinking. He ordered her to submit to a field sobriety test, and she readily agreed, expecting that she would pass.
{6} But the sobriety test was never administered. Instead, Defendant walked Victim to the passenger side of his truck, where he "frisked" her for weapons, feeling down her legs and midsection, and eventually, reaching under her shirt and bra to fondle her breasts. When Victim turned to tell Defendant to stop, he held a knife with a long, serrated blade to her throat and pressed her hard against the passenger seat. The two struggled over the knife while Victim begged for her life. She told Defendant that she had a husband and kids. She told Defendant she did not want to die. She offered to have sex with Defendant. They agreed to lock the knife in the trunk of Victim's car. They then returned to Defendant's truck, Victim undressed, and Defendant fondled her bare breasts a second time.
{7} Defendant now asserts that "there is no rational view of the evidence that [Defendant] touched [Victim's] unclothed breasts . . . while, at the same time, he was armed with and used a knife as charged in the second element[,]" because "[Defendant] no longer had possession of the knife." In so arguing, Defendant somewhat artificially separates the use and display of the knife from its effect on Victim and the entire chain of events that followed. He thus "advances a fairly narrow interpretation of 'armed with a deadly weapon.' " State v. Alvarez-Lopez, 2003-NMCA-039, ¶¶ 30-31, 133 N.M. 404, 62 P.3d 1286 (), rev'd on other grounds, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699.
{8} In any event, Defendant's argument relies on the faulty assumption that the jury convicted him of CSC based only on what he characterizes as an isolated incident of fondling—which occurred in the cab of Defendant's truck after the knife was locked away. But it is equally likely that the jury convicted Defendant based on the initial frisk at knife point. Victim specifically testified that, during the frisk, Defendant "grabbed [her] breasts" and "continually fondled" her. He patted her down, feeling "under [her] shirt, under [her] bra, and then . . . under the rim [of her bra], and then on[her] breasts." When she turned to resist, Defendant "pressed [her] body against the seat of his car, pulled a mask down [over his face], and held a knife to [her] throat."
{9} Viewed in the light most favorable to the State, there was sufficient evidence for the jury to find that Defendant, armed with a knife, touched Victim's bare breasts without her consent during the initial frisk and used the knife to cow her into submission when she resisted his touch. We are confident that these facts—independent of any further contact that occurred while the knife was locked in Victim's trunk—are sufficient to support Defendant's conviction for CSC. See State v. Salazar, 1997-NMSC-044, ¶ 32, 123 N.M. 778, 945 P.2d 996 ().
{10} Defendant next argues that the district court committed fundamental error when it did not sua sponte instruct the jury on the defenses of citizen's arrest and self-defense and when it did not issue an instruction on false imprisonment as a lesser included offense to kidnapping. "The rule of fundamental error applies only if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or if substantial justice has not been done." State v. Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72 (internal quotation marks and citation omitted). Fundamental error generally occurswhen the trial court fails to instruct the jury on an essential element, including unlawfulness, which is the element negated by self-defense. See State v. Benally, 2001-NMSC-033, ¶¶ 18-20, 131 N.M. 258, 34 P.3d 1134. "However, fundamental error does not occur if the jury was not instructed on an element not at issue in the case." Sutphin, 2007-NMSC-045, ¶ 16. Nor does it occur when, looking at the individual facts and circumstances, there is "no distinct possibility that the jury convicted efendant without finding all elements beyond a reasonable doubt." Id. ¶ 20 ().
{11} Relying on State v. Johnson, Defendant argues that we must reverse his conviction for kidnapping because the district court did not submit an instruction on citizen's arrest to the jury. 1996-NMSC-075, ¶¶ 19-20, 122 N.M. 696, 930 P.2d 1148. Citing State v. Slayton, the State counters, in part, that "citizen's arrest was not a legally valid defense because 'citizens' arrests for DWI are not legal.' " 2009-NMSC-054, ¶ 26, 147 N.M. 340, 223 P.3d 337.
{12} "The citizen's arrest defense is based on a person's common-law right to arrest for a breach of the peace committed in his presence, as well as for a felony."Johnson, 1996-NMSC-075, ¶ 7 (internal quotation marks and citation omitted). In Johnson, our Supreme Court noted that some states have "enacted statutes that placed greater restrictions on the right of citizen's arrest in an attempt to...
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