State v. Ocon

• Decision Date: 08 April 2021
• Docket Number: No. A-1-CA-37575,A-1-CA-37575
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. ROBERTO OCON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
ROBERTO OCON, Defendant-Appellant.

No. A-1-CA-37575

COURT OF APPEALS OF THE STATE OF NEW MEXICO

April 8, 2021

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
William G.W. Shoobridge, District Judge

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

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OPINION

IVES, Judge.

{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.

BACKGROUND

{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,

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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.

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{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

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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.

DISCUSSION

I. Defendant's Conviction for Aggravated Assault Upon a Peace Officer Was Not the Result of Fundamental Error

{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:

1. [D]efendant walked towards Officer Gutierrez with a knife and made a stabbing motion;

2. At the time, [Officer] Gutierrez was a peace officer and was performing duties of a peace officer;

3. [D]efendant knew [Officer] Gutierrez was a peace officer;

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4. [D]efendant's conduct caused [Officer] Gutierrez to believe [D]efendant was about to intrude on [Officer] Gutierrez['s] bodily integrity or personal safety by touching or applying force to [Officer] Gutierrez in a rude[,] insolent[,] or angry manner;

5. A reasonable person in the same circumstances as [Officer] Gutierrez would have had the same belief;

6. [D]efendant used a knife;

7. This happened in New Mexico on or about the 2nd day of August 2016.

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.

A. Standard of Review

{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 ("In a fundamental error analysis, we begin by considering whether reversible error exists[.]"). Jury

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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 (explaining that the Sixth and Fourteenth Amendments to the United States Constitution "entitle a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt" (internal quotation marks and citation omitted)); see also State v. Suazo, 2017-NMSC-011, ¶ 26, 390 P.3d 674 ("A jury instruction [that] does not instruct the jury upon all questions of law essential for a conviction . . . is reversible error." (internal quotation marks and citation omitted)). But see id. ¶¶ 27-31 (analyzing, "under a reversible error standard[,]" whether "a failure to instruct on an essential element of an offense" did not require reversal because "there [could] be no dispute that the essential element was established" (internal quotation marks and citation omitted)).

{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, 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

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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...