State v. Laguna

• Decision Date: 04 October 1999
• Docket Number: No. 19443.,19443.
• Citation: 128 N.M. 345,992 P.2d 896
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert LAGUNA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

992 P.2d 896

128 N.M. 345

STATE of New Mexico, Plaintiff-Appellee, v. Robert LAGUNA, Defendant-Appellant.

No. 19443.

Court of Appeals of New Mexico.

October 4, 1999.

Certiorari Denied November 29, 1999.

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, Susan Gibbs, Assistant Appellate Defender, Santa Fe, for Appellant.

Certiorari Denied, No. 26,017, November 29, 1999.

OPINION

SUTIN, Judge.

{1} Defendant appeals his convictions of first degree kidnapping, two counts of attempted criminal sexual contact of a minor (CSCM), and enticement of a child. He argues that (1) the evidence is insufficient to support first degree kidnapping; (2) the kidnapping statute, NMSA 1978, Section 30-4-1 (1995), is unconstitutionally vague; and (3) the prohibition against double jeopardy was violated. We conclude that sufficient evidence supports the first degree kidnapping conviction and that the kidnapping statute passes constitutional muster. We also hold that double jeopardy has been violated and remand to vacate the enticement conviction and one of the attempted CSCM convictions.

FACTS

{2} The victim, Robert H., two months away from fifteen years old, decided to walk to his girlfriend's house on a hot, Las Cruces, July afternoon. Getting there would take about an hour. A car passed by. The driver, Defendant, waved, and Robert waved back. Defendant pulled off the street and motioned for Robert to come over. Robert went to the vehicle and Defendant asked Robert if he had a sister. Robert replied that he did. Defendant asked her name, which Robert supplied. Defendant indicated that he knew her. During cross-examination, Robert testified that he did not know if it was true that Defendant knew his sister and that his sister knew a lot of people. After the small talk about Robert's sister, Defendant asked Robert if he needed a ride. Robert accepted, got in the car and gave Defendant directions. Robert testified that he got in the vehicle because he wanted a ride, not because Defendant knew his sister. However, on redirect, Robert testified that he felt more comfortable getting in the vehicle because Defendant said he knew his sister. Nevertheless, because it was hot, he would have taken a ride from anyone that day.

{3} As Defendant was driving in the direction indicated by Robert, he placed his closed hand on Robert's leg and began to rub and move his hand up Robert's leg. Robert pushed Defendant's hand away. Again, Defendant placed his hand on Robert's leg and worked it up the leg toward his crotch. Robert testified that this touching happened more than twice. Robert continued to push Defendant's hand away. On at least one of those touchings, Defendant grabbed Robert's leg.

{4} Defendant turned on a street that was not in the direction of Robert's destination. Defendant pulled over to a house, and asked, "Can we stop at my friend's house real quick?" Robert told Defendant that if he did, he, Robert, was "just going to leave." Defendant drove on, continuing in the direction that Robert had given him. By this time, Robert was trying to think of a way to get away from Defendant and he told Defendant that he needed to stop at a Shell station they were passing. Robert then quickly changed his mind about the Shell station and directed Defendant to his sister's boyfriend's house, which was nearby. Robert was thinking, "Well, because like if I had to struggle or anything, I could tell [her boyfriend]." Defendant drove to the house and stopped in front of it.

{5} At some point or points during the ride, Robert thought that Defendant might rape him and that Defendant would not let him out of the car.

{6} At the sister's boyfriend's house, while the engine remained running and before Robert could unfasten his seatbelt and exit the vehicle, Defendant grabbed for Robert's crotch. According to Robert, Defendant "tried to grab my penis, but he grabbed the pants" instead. Robert instantly and reactively punched Defendant, who then let go of the pants. Robert unfastened his seatbelt, got out of the car, went into the house and told the mother of his sister's boyfriend what happened. He then began to walk to his girlfriend's house. Defendant pulled up and called to Robert from the car. Robert told Defendant, "No. I'm going to kill you...." Defendant left, and Robert went into a nearby house and called the police.

DISCUSSION

I. The Evidence of Kidnapping Is Sufficient

{7} Defendant contends that this evidence is insufficient to support the conviction of first degree kidnapping. Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support a conclusion. See State v. Carrasco, 1997-NMSC-047, ¶ 11, 124 N.M. 64, 946 P.2d 1075

. We review the evidence in the light most favorable to the verdict, resolving all conflicts and indulging in all permissible inferences to uphold the conviction and disregarding all evidence and inferences to the contrary. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We must decide whether the evidence could justify a finding by a rational trier of fact that each essential element of the crime charged has been established beyond a reasonable doubt. See State v. Huff, 1998-NMCA-075, ¶ 10, 125 N.M. 254, 960 P.2d 342.

{8} Kidnapping is the "unlawful taking, restraining, transporting or confining of a person, by force, intimidation or deception, with intent ... to inflict death, physical injury or a sexual offense on the victim." Section 30-4-1(A). Kidnapping is a first degree felony that can be reduced to a second degree felony when the defendant "voluntarily frees the victim in a safe place and does not inflict great bodily harm upon the victim." Section 30-4-1(B).

{9} Defendant concedes that there was evidence that he took or transported Robert with the intent to commit a sexual offense. Defendant does not argue that the evidence was insufficient to prove unlawfulness. He contends, however, that there was no evidence of force, intimidation, or deception at any stage. He argues that the State relied only on deception but did not meet its burden of proving deception. The record shows that the State argued both intimidation and deception in the taking and transporting of Robert. The use of force is not an issue.

{10} While there does not appear to be any evidence of intimidation in getting Robert into the car, the evidence of what occurred during the ride could reasonably lead the fact finder to conclude that Defendant intimidated Robert during transportation. Defendant argues that there was no testimony of any threats or use of intimidating words or gestures. We disagree. To intimidate is to "make timid[; t]o inhibit or discourage by or as if by threats." Webster's II New College Dictionary 581 (1995). Intimidation includes "putting in fear." Black's Law Dictionary, 737 (6th ed.1990); see also State v. Sanchez, 78 N.M. 284, 285, 430 P.2d 781, 782 (Ct.App.1967)

. Intimidation may result from words or conduct. Intimidation creates an apprehension of danger of bodily harm while also reducing the victim's ability to resist the advances toward that harm. See Sanchez, 78 N.M. at 285,

430 P.2d at 782.

{11} Robert was in a moving car, strapped in his seatbelt, when Defendant made demonstrative sexual advances. Defendant changed the intended destination. Robert was afraid that Defendant was going to rape him. He did not think Defendant would let him out of the car. Defendant was an adult, in control of the vehicle, making demonstrative sexual advances toward a young teenager. We believe these are circumstances from which the jury could reasonably infer that Robert was transported or confined by intimidation.

{12} Defendant also maintains that there was no evidence of deception and no nexus between any deception and Robert's acceptance of the ride. He argues that in order to prove deception, the State was required to show that, but for his statement that he knew Robert's sister, Robert would not have taken the ride with him. Defendant focuses on Robert's state of mind. Robert's state of mind is not, however, essential to prove kidnapping by deception. See State v. Garcia, 100 N.M. 120, 125, 666 P.2d 1267, 1272 (Ct.App.1983). Furthermore, we disagree that Defendant's statement of knowing Robert's sister was the basis of the deceit. Defendant initiated the contact with a lure to make Robert comfortable and with an illicit, hidden motivation. The deceit was the offer of the ride while concealing the intent of exploring sexual involvement with Robert. See id. at 124, 666 P.2d at 1271 (giving a ride to a nine-year-old child on the defendant's shoulders, and the child's appearance of being happy, was enough to prove kidnapping by deceit because deception "embodies either affirmative acts intended to delude a victim or omissions that conceal the intent and purpose of an accused").

{13} Moreover, kidnapping can occur when an association begins voluntarily but where the defendant's real purpose is something other than the reason the victim voluntarily associated with the defendant. See State v. Blackburn, 251 Kan. 787, 840 P.2d 497, 501 (1992)

; State v. French, 139 Vt. 320, 428 A.2d 1087, 1088 (1981); cf. State v. Pisio, 119 N.M. 252, 260, 889 P.2d 860, 868 (Ct.App.1994) (construing the kidnapping statute prior to the 1995 amendments); State v. Mares, 112 N.M. 193, 199, 812 P.2d 1341, 1347 (Ct.App.1991) (same). The jury here could reasonably conclude that Defendant deceived Robert and that a causal connection existed between the deception and Robert's acceptance of the ride.

{14} Defendant contends that even if a kidnapping occurred, the charge should have been reduced to second degree kidnapping because the evidence established that he voluntarily freed Robert in a safe place.

{15} The court instructed the jury that in order to find first degree kidnapping, it would...