State v. Ocon
Decision Date | 08 April 2021 |
Docket Number | No. A-1-CA-37575,A-1-CA-37575 |
Citation | 493 P.3d 448 |
Court | Court of Appeals of New Mexico |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Roberto OCON, Defendant-Appellant. |
Hector H. Balderas, Attorney General Benjamin Lammons, Assistant Attorney General Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant
{1} Defendant Roberto Ocon appeals his convictions for aggravated assault upon a peace officer (deadly weapon), in violation of NMSA 1978, Section 30-22-22(A)(1) (1971) ; resisting, evading, or obstructing an officer (resisting or abusing a peace officer), in violation of NMSA 1978, Section 30-22-1(D) (1981) ; and battery against a household member, in violation of NMSA 1978, Section 30-3-15 (2008). Defendant argues that (1) his conviction for aggravated assault upon a peace officer resulted from a fundamental error in the jury instructions and was not supported by sufficient evidence; (2) his conviction for resisting or abusing a peace officer resulted from a fundamental error in the jury instructions and violated his right against double jeopardy; and (3) a new trial is required on the charge of battery against a household member because the district court admitted hearsay evidence. Accepting the State's concession that Defendant's conviction for resisting or abusing a peace officer was the result of fundamental error, we reverse and remand for a new trial on that charge. We affirm Defendant's other convictions.
{2} On the afternoon of August 2, 2016, Victim called 911 from her cell phone. Victim did not respond when the operator answered, but the operator could hear people speaking Spanish on the open line. The operator, who understood Spanish, heard someone say the Spanish equivalent of "you're here to kill me; why are you here to kill me?" Believing that the call might have related to an act of domestic violence, the operator dispatched Officer Kevin Gutierrez and Chief James Jones of the Eunice Police Department to Victim's home. When Officer Gutierrez and Chief Jones arrived, a neighbor told them that she thought Victim's ex-boyfriend was there trying to hurt Victim. The neighbor's concerns were not unfounded; Defendant, who was in fact Victim's estranged husband, was in the home engaged in an argument with Victim that, by all accounts, turned physical.
{3} After speaking with the neighbor, the officers knocked on Victim's front door and announced themselves as police, and Defendant opened the door. Officer Gutierrez asked Defendant if Victim was there. Instead of answering, Defendant began walking back into the home. When Officer Gutierrez told and motioned for Defendant to come toward him, Defendant said, "Okay[,]" but continued toward the kitchen. Officer Gutierrez then drew his gun and approached the threshold of the kitchen while yelling at Defendant to get on the ground. Defendant turned back toward Officer Gutierrez, and, as the two men met at the threshold of the kitchen, Officer Gutierrez yelled, "No, no, no; no, no, no; get on the ground; get on the ground, sir" before shooting Defendant twice in the chest. Defendant was transported to a nearby hospital and ultimately survived the shooting. Victim was also transported by ambulance to a hospital, as she had sustained visible injuries.
{4} At trial, Officer Gutierrez testified that he shot Defendant because Defendant had armed himself with a knife in the kitchen and thrusted, slashed, and reared back to stab him with it. But Defendant's counsel argued that Defendant had been holding a cell phone. Footage from Officer Gutierrez's lapel camera is inconclusive; the moments surrounding the shooting are a blur, and the footage shows both a cell phone and a knife on the floor of the kitchen after the shooting. There was also a dispute at trial as to the amount of force Defendant used against Victim, whether he had threatened to kill her, and whether he prevented her from using her cell phone.
{5} For the violence against Victim, the State prosecuted Defendant for assault against a household member with intent to commit a violent felony, in violation of NMSA 1978, Section 30-3-14(A) (1995) ;1 false imprisonment, in violation of NMSA 1978, Section 30-4-3 (1963) ; and interference with communications, in violation of NMSA 1978, Section 30-12-1 (1979). On those charges, the jury only found Defendant guilty of battery against a household member, on which it had been instructed as a lesser included offense of assault against a household member with intent to commit a violent felony.2 For the violence against Officer Gutierrez, the State prosecuted Defendant for aggravated assault upon a peace officer (deadly weapon), in violation of Section 30-22-22(A)(1) ; and resisting, evading, or obstructing an officer (resisting or abusing a peace officer), in violation of Section 30-22-1(D). The jury found Defendant guilty of both crimes against the officer. Defendant appeals.
{6} Defendant argues that we should reverse his conviction for aggravated assault upon a peace officer because the jury was not instructed on every essential element of the crime. The jury was instructed that, to convict Defendant of aggravated assault upon a peace officer by use of a deadly weapon, it had to find the following elements beyond a reasonable doubt:
Although we agree with Defendant that the given instruction erroneously failed to inform the jury that it was also required to find that Defendant used a deadly weapon and that his conduct was unlawful, we conclude that these errors do not rise to the level of fundamental error under our Supreme Court's precedents and therefore do not warrant reversal.
{7} We review for fundamental error because Defendant did not preserve his argument by objecting to the jury instruction at trial. State v. Barber , 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. Our review involves two basic steps. The first is to determine whether error occurred. In other words, our analysis "begins at the same place as [the] analysis for reversible error[:]" we ask "whether a reasonable juror would have been confused or misdirected by the jury instruction." Id. ¶ 19 ; see State v. Grubb , 2020-NMCA-003, ¶ 7, 455 P.3d 877 ().
Jury instructions cause confusion or misdirection when, "through omission or misstatement," they do not provide "an accurate rendition" of the essential elements of a crime. State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 ; see State v. Herrera , 2014-NMCA-007, ¶ 8, 315 P.3d 343 ( ); see also State v. Suazo , 2017-NMSC-011, ¶ 26, 390 P.3d 674 . But see id. ¶¶ 27-31 ( ).
{8} If we conclude that the instructions were erroneous, we proceed to the second step, asking whether the error is fundamental. Fundamental error exists if it would "shock the [court's] conscience" to allow the conviction to stand, Barber , 2004-NMSC-019, ¶ 14, 135 N.M. 621, 92 P.3d 633, either because of "the obvious innocence of the defendant," id. ¶ 16, or because "a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused." Id. ¶ 17. This inquiry requires us to "review the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case[.]" Id. ¶ 19 (internal quotation marks and citation omitted).
{9} Our Supreme Court has recognized that the omission of an essential element from a jury instruction often rises to the level of fundamental error, id. ¶ 20, but its precedent includes multiple formulations of the circumstances under which the omission of an essential element does not amount to fundamental error. These formulations diverge on a crucial point: whether the focus of the inquiry is on what the jury in a particular case actually found—what it "effectively determined," State v. Orosco , 1992-NMSC-006, ¶ 19, 113 N.M. 780, 833 P.2d 1146 —under the given instructions, or on the degree of confidence an appellate court has in what the jury would have found had it been properly instructed. Compare State v. Samora , 2016-NMSC-031, ¶ 29, 387 P.3d 230 ...
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...we determine whether error occurred; and (2) we determine whether this error is fundamental. See State v. Ocon , 2021-NMCA-032, ¶¶ 7-8, 493 P.3d 448. To determine whether error occurred, we ask "whether a reasonable juror would have been confused or misdirected by the jury instruction." Sta......
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... ... inadequate instruction) ... {¶19} ... Determining fundamental error is a two-step inquiry: first, ... we determine whether error occurred. Then we determine ... whether this error is fundamental. See ... State v. Ocon , 2021-NMCA-032, ¶¶ 7-8, 493 ... P.3d 448. To determine whether error occurred, we ask ... "whether a reasonable juror would have been confused or ... misdirected by the jury instruction." State v ... Barber , 2004-NMSC-019, ¶ 19, 135 N.M. 621, 92 P.3d ... 633 ... ...
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