State v. Radosevich

• Decision Date: 01 March 2016
• Docket Number: No. 33,282.,33,282.
• Citation: 376 P.3d 871
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. John RADOSEVICH, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

376 P.3d 871

STATE of New Mexico, Plaintiff–Appellee,

v.John RADOSEVICH, Defendant–Appellant.

No. 33,282.

Court of Appeals of New Mexico.

March 1, 2016.

Certiorari Granted, July 1, 2016

No. S-1-SC-35864.

Hector H. Balderas, Attorney General, Santa Fe, NM, Adam Greenwood, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

GARCIA

, Judge.

{1} Defendant appeals from his convictions for aggravated assault with a deadly weapon and tampering with evidence. Defendant raises several challenges on appeal related to his criminal charges: the district court's refusal to instruct the jury on the lesser included offense of simple assault; the district court's decision to direct a verdict on the charged offense of assault with the intent to commit murder and then sua sponte instruct the jury on the new and different charge of aggravated assault with a deadly weapon after the close of evidence; and the district court's failure to properly instruct the jury concerning whether the weapon was a deadly weapon for the additional new charge of aggravated assault with a deadly weapon. Next, Defendant argues that if this Court holds there was error in the district court's decision to sua sponte instruct the jury on aggravated assault with a deadly weapon as a lesser included offense of the previously charged offense, then the prohibition against double jeopardy prevents the State from retrying Defendant on that newly added charge. Defendant also asks for a retrial or resentencing on the tampering with evidence charge in the event that this Court holds there was error requiring a retrial on the aggravated assault with a deadly weapon charge, given that the convictions are inextricably linked. Lastly, Defendant argues that the district court erred by admitting bad act evidence introduced through a statement Defendant allegedly made about robbing the neighborhood.

{2} In its answer brief, the State concedes without analysis that the jury should have been instructed to find that Defendant's weapon was a deadly weapon and that, under the circumstances, it was fundamental error not to have done so. The State also concedes without analysis that Defendant's conviction for tampering with evidence should be remanded for a new trial. The State opposes Defendant's argument that double jeopardy bars retrial on the charge of aggravated assault with a deadly weapon, noting that reversal is not sought for lack of evidence nor is it appropriate on a lack of evidence basis. Defendant did not address either of the State's concessions. Irrespective, we address all the issues presented for review in this appeal.

DISCUSSION

{3} Defendant and his neighbor (Victim) got into an argument, and Defendant started yelling obscenities about Victim and Victim's dogs. After threatening to shoot Victim and his dogs, Defendant went into his house and came back out with a knife. Defendant approached Victim who feared that he was going to be attacked. The police arrived and Defendant threw the knife away. The police later found the knife in Defendant's yard. We discuss additional facts as they become necessary in the context of our analysis.

ANALYSIS

{4} Our independent review of this case has identified compounding errors, beginning with the State's charging documents and its trial decisions, followed by the district court's sua sponte decision during trial that ended with improper instructions to the jury. Further, the State's concession of fundamental error in the jury instruction for aggravated assault inadequately addressed the resolution of these errors. See

State v. Guerra, 2012–NMSC–027, ¶ 9, 284 P.3d 1076

(noting that the appellate courts are not bound by the state's concession).

{5} We begin our analysis by addressing the State's concession of fundamental error in the jury instruction for aggravated assault with a deadly weapon. See State v. Caldwell, 2008–NMCA–049, ¶ 8, 143 N.M. 792, 182 P.3d 775

(observing that we conduct our own analysis of a conceded issue by the state). As we explain below, we accept the State's concession of fundamental error, then address the district court's improper decision to sua sponte instruct the jury on a different offense after the close of evidence because it is crucial to the State's ability to retry Defendant for the assault-based conduct that was at issue. We conclude that the compulsory rule of joinder bars further prosecution of Defendant for aggravated assault with a deadly weapon. We further conclude that Defendant's conviction for tampering with evidence is relative to an indeterminate crime and should be amended accordingly, not retried, as the State conceded.

Fundamental Error in the Jury Instructions

{6} “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). “The general rule is that fundamental error occurs when the trial court fails to instruct the jury on an essential element.” Id. Likening a missing element to “a partial directed verdict,” our Supreme Court stated that such an action is impermissible on the basis that “it is the fundamental right of a criminal defendant to have the jury determine whether each element of the charged offense has been proved by the state beyond a reasonable doubt.” State v. Nick R., 2009–NMSC–050, ¶ 37, 147 N.M. 182, 218 P.3d 868 (internal quotation marks and citation omitted). Fundamental error does not occur, however, where the jury was not instructed on an element that was not at issue in the case or where “there can be no dispute that the omitted element was established [.]” Sutphin, 2007–NMSC–045, ¶ 16, 142 N.M. 191, 164 P.3d 72.

{7} In the current case, the jury was instructed that it could find Defendant guilty of aggravated assault with a deadly weapon where the State proved the following elements beyond a reasonable doubt:

1. [D]efendant approached and threatened to stab [Victim];

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

3. A reasonable person in the same circumstances as [Victim] would have had the same belief;

4. [D]efendant used a knife;

5. This happened in New Mexico on or about the 8th day of September, 2012.

The use notes for the Uniform Jury Instruction applicable to aggravated assault with a deadly weapon state that, unless the object used is specifically listed as a deadly weapon in NMSA 1978, Section 30–1–12(B) (1963)

, the jury should be instructed that the object used is a deadly weapon if it could cause death or great bodily harm when used as a weapon. UJI 14–305 NMRA, use note 5.

{8} The weapon at issue in this case is a three-and-one-half-inch kitchen knife. At trial, the Defendant characterized the weapon as “this little kitchen knife.” The State does not dispute Defendant's description of the kitchen knife as small and concedes that it is not among the described knives specifically included within the definition of deadly weapons in Section 30–1–12(B)

: “daggers ... switchblade knives, bowie knives, poniards, butcher knives, dirk knives ... swordcanes, and any kind of sharp pointed canes[.]” We accept the State's concession that the knife at issue does not fall within the per se statutory definition for “deadly weapons,” because it is not specifically designated as the type of knife considered to be a deadly weapon, see

Nick R., 2009–NMSC–050, ¶ 16, 147 N.M. 182, 218 P.3d 868, and because the small kitchen knife is not contemplated “in the catchall phrases” referring to “inherently dangerous items that either are carried for use or are actually used to inflict injuries on [or kill] people.” Id. ¶ 21.

{9} We also agree with the State that this failure to properly instruct the jury amounted to fundamental error. There was no evidence at trial about this particular kitchen knife that might suggest it was inherently threatening or deadly. In addition, there was no evidence about Defendant's skill with knives or his behavior that made his possession of it inherently dangerous or deadly. Thus, nothing in the record suggests that this is a situation where the missing element was undisputedly established. See Sutphin, 2007–NMSC–045, ¶ 16, 142 N.M. 191, 164 P.3d 72

(stating that fundamental error is not demonstrated where there is a missing element in the instructions where “there can be no dispute that the omitted element was established”). Finally, the jury instructions gave no suggestion that the jury was required to consider whether any deadly weapon was used or whether the knife was used as a deadly weapon. Cf.

State v. Traeger, 2001–NMSC–022, ¶¶ 22–25, 130 N.M. 618, 29 P.3d 518 (holding that there was no fundamental error in the awkward, noncompliant phraseology of a “deadly weapon” instruction, where, (1) the jury was instructed to find that the baseball bat was used as a deadly weapon; (2) the Supreme Court was persuaded that the jury considered this essential element; and (3) the evidence clearly showed that the defendant used the baseball bat as a weapon to inflict great bodily harm in an effort to threaten the victim to undress and have forced sexual intercourse).

{10} We further observe that the character of the weapon was not an issue in this case because Defendant was neither charged nor tried by the State for a crime that specifically included a “deadly weapon” as an element. See NMSA 1978, § 30–3–3 (1977)

(“Assault with intent to commit a violent felony consists of any person assaulting another with intent to kill or commit any murder, mayhem, criminal sexual...