State v. Montoya, NO. 35,006

• Docket Nº: NO. 35,006
• Citation: 392 P.3d 223
• Case Date: December 29, 2016
• Court: Court of Appeals of New Mexico

392 P.3d 223

STATE of New Mexico, Plaintiff-Appellee,
v.
Joseph MONTOYA, aka Joseph E. Montoya, aka Joseph Emeterio Montoya, aka Jose Montoya, Defendant-Appellant.

NO. 35,006

Court of Appeals of New Mexico.

Filing Date: December 29, 2016
Certiorari Denied, February 24, 2017, No. S-1-SC-36280

Hector H. Balderas, Attorney General, Santa Fe, NM, Elizabeth Ashton, Assistant Attorney General, Albuquerque, NM, for Appellee.

L. Helen Bennett, Albuquerque, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} This case turns on whether Defendant's conviction for his robbery of the victim he earlier robbed and killed can stand given that the victim was already dead at the time of the second robbery. The question presented to us is one of "personhood," Defendant contends. He asserts that just as one cannot kill a person already dead, one cannot rob a person already dead. We hold that under the facts of this case, the robbery statute was properly applied, and Defendant was properly convicted of robbery despite the posthumous—by several hours—nature of the second robbery.

BACKGROUND

{2} Defendant Joseph Montoya, with the assistance of others, robbed and then killed Angel Arroyo. Defendant then left the scene of these crimes. Returning a few hours later, Defendant, again with the aid of others, emptied Arroyo's pocket of any remaining cash, poured gasoline throughout the residence

392 P.3d 224

and on Arroyo's body, then set the residence on fire. Convicted of multiple crimes and sentenced to 104.5 years of incarceration, Defendant challenges the application of the robbery statute when the robbery commenced and concluded on a person dead for several hours. He also raises ineffective assistance of counsel because his attorney did not request an instruction on theft as a lesser included offense of robbery.

DISCUSSION

Personhood

{3} We start with whether Defendant's conviction for the second robbery was lawful. We review this issue de novo, since it involves statutory interpretation. State v. Duhon , 2005–NMCA–120, ¶ 10, 138 N.M. 466, 122 P.3d 50 ; see State v. Almanzar , 2014–NMSC–001, ¶ 9, 316 P.3d 183.

{4} NMSA 1978, Section 30–16–2 (1973), reads: "Robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence." The jury was instructed that in order to find Defendant guilty of robbery, the State was required to prove Defendant took cash from Arroyo's pocket by force or violence, intending to deprive Arroyo of the cash. See UJI 14–1620 NMRA. "[R]obbery is distinct from larceny because it requires, and is designed to punish, the element of force." State v. Bernal , 2006–NMSC–050, ¶ 28, 140 N.M. 644, 146 P.3d 289.

{5} Defendant contends that there was insufficient evidence to convict him of robbery after he returned to the scene of the killing because "a robbery conviction is improper when the robbery both commences and concludes on a dead person." He relies on language in Stephenson v. State , 29 N.E.3d 111, 116 (Ind. 2015), that states, "[w]hile a robbery conviction may not be proper when a robbery both commences and concludes on a dead person, the crime is committed when part of the robbery occurs before the victim's death and the other part occurs after the death." Defendant argues that just as attempting to kill someone who is already dead is a legal impossibility, "one cannot rob a corpse." He further argues that Arroyo did not have immediate control over the cash in his pocket when Arroyo was already dead, as required under Section 30–16–2. And he argues that the Legislature did not intend the robbery statute to apply to circumstances, such as those here, in which the victim was no longer a "person." Defendant asserts that "[t]he temporal and relational gap between the first robbery and shooting and killing of Arroyo, and the subsequent, second theft of money from Arroyo's body before the arson is simply too large, and was broken by [Defendant's] flight from the scene...