State v. Ramos

• Decision Date: 27 June 2013
• Docket Number: No. 33,217.,33,217.
• Citation: 305 P.3d 921
• Parties: STATE of New Mexico, Plaintiff–Respondent, v. Aaron A. RAMOS, Defendant–Petitioner.
• Court: New Mexico Supreme Court

305 P.3d 921

STATE of New Mexico, Plaintiff–Respondent,
v.
Aaron A. RAMOS, Defendant–Petitioner.

No. 33,217.

Supreme Court of New Mexico.

June 27, 2013.

[305 P.3d 922]

Bennett J. Baur, Acting Chief Public Defender, Carlos Ruiz de la Torre, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Yvonne Marie Chicoine, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION
BOSSON, Justice.

{1} A jury convicted Aaron Ramos (Defendant) of the misdemeanor of violating an order of protection. Defendant appeals because he was refused a jury instruction that would have required the jury to find that he had “knowingly” violated the protection order. Our Court of Appeals upheld the district court's decision not to give the “knowingly” instruction, noting the absence of any such word in the relevant statute and applying general principles of statutory construction. For the reasons that follow, we read the language and structure of the statute together with its legislative policy and purpose, and conclude that our Legislature could only have intended to make the crime a “knowing” violation. Accordingly, it was reversible error to deny Defendant's requested instruction to that effect. We reverse and remand for a new trial consistent with this Opinion.

BACKGROUND

{2} Andrea Reed, Defendant's former girlfriend, obtained an ex parte temporary order of protection (the order) against Defendant on October 31, 2008. Her authority for the order was NMSA 1978, Section 40–13–4(A)(1) (2008) (“Upon the filing of a petition for order of protection, the court shall ... immediately grant an ex parte temporary order of protection ... if there is probable cause from the specific facts shown by the affidavit or by the petition to give the judge reason to believe that an act of domestic abuse has occurred[.]”). Ms. Reed's reason for obtaining the order is not entirely clear from the record, but it appears to involve Defendant having entered Ms. Reed's home without her consent. Ms. Reed was apparently upset about this, and she and Defendant had a heated conversation in which Defendant allegedly stated, “What? You act like I'm gonna burn your house down.” Based on these events, Ms. Reed obtained the order.

{3} The order explicitly prohibited Defendant from going within 25 yards of Ms. Reed in a public place. The order also contained a provision prohibiting Ms. Reed from doing “any affirmative act the purpose or effect of which is to cause respondent to violate this order.” Regarding its enforcement, the order stated that “[i]f the respondent violates any part of this order, the respondent may be charged with a crime, arrested, held in contempt of court, fined or jailed.”

{4} A sheriff's deputy personally served Defendant with the order at his workplace. At this time, the deputy told Defendant to “just stay away from her.” Defendant testified that to him this meant, “don't call her, don't write her, don't go to talk to her, or engage her.” In fact, Defendant was so confident of his understanding of what the order entailed that he failed to read its contents. Additionally, Defendant testified that he told the deputy when he received the order that this “[was] great, this is the best thing that could have happened.” When asked what he believed a protective order meant, Defendant replied that it meant to stay away from Ms. Reed. When asked why he did not read the order, Defendant stated that its meaning was “obvious, it's a protective order.”

[305 P.3d 923]

{5} Both Defendant and Ms. Reed are dance instructors and they would often go to a certain bar on Thursday nights to teach students how to dance in public with a live band. On Thursday, November 6, 2008, Defendant went to this bar intending to meet one of his students. Defendant arrived before his student and sat down at the bar and ordered a beer. As it turns out, Ms. Reed was also at this bar with her dance students, seated twelve to fifteen yards away from Defendant. Defendant testified that he did not see Ms. Reed when he arrived at the bar.

{6} After seeing Defendant, Ms. Reed approached the bouncer and told him about her protective order against Defendant and asked for his assistance. The bouncer alerted Defendant that Ms. Reed was in the bar and that she wanted him to leave. Defendant refused, stating, “that's her problem, I am going to drink my beer.” According to Defendant, he also told the bouncer, “why can't she leave, why do I need to leave?” and further, “why am I having to leave, I'm not even messing with anybody at all, I'm just here.”

{7} The bouncer informed Ms. Reed what Defendant had said. When the bouncer returned, he told Defendant that Ms. Reed was going to call the police. Defendant responded, “F––– her, she can call the cops, I'm finishing my beer.” Nevertheless, when Defendant saw Ms. Reed on the telephone, he grabbed his jacket, announced, “I'm outta here,” and left for another bar across the street. All told, Defendant was at the bar for an estimated ten to fifteen minutes.

{8} Defendant was arrested shortly thereafter at the bar across the street for violation of the protective order pursuant to NMSA 1978, Section 40–13–6(D) (2008) (describing how a peace officer shall act once presented with probable cause to believe a restrained party has violated a protective order). The District Attorney charged Defendant with one count of violation of a temporary restraining order.

{9} Defendant's trial occurred on March 25, 2009. There is no uniform jury instruction for a violation of a protective order. As such, Defendant proposed a jury instruction requiring the jury to find that he knowingly violated the order of protection, which the court denied.

{10} The jury found Defendant guilty, and he was sentenced to 364 days of incarceration based partially upon the court's perception of his attitude, lack of remorse, and as the judge stated, that “[he] doesn't get that what he does is wrong.” Defendant served 90 of those days in the Lincoln County Detention Center with credit for time served during his pre-sentence confinement and the remaining 270 days on probation.

{11} The Court of Appeals affirmed Defendant's conviction in a memorandum opinion. State v. Ramos, No. 29,514, slip op. at 18 (N.M.Ct.App. Aug. 16, 2011). We granted certiorari to consider the proper mens rea requirement for the crime of violating a protective order. State v. Ramos, 2011–NMCERT–010, 289 P.3d 1254. Defendant preserved his objection by tendering a correct jury instruction at trial, and thus we review this appeal for reversible error. See State v. Benally, 2001–NMSC–033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (“The standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved we review the instructions for reversible error.”).

DISCUSSION

{12} The Family Violence Protection Act, NMSA 1978, Sections 40–13–1 to –12 (1987) (as amended through 2010) contains the procedures for obtaining and enforcing protection orders. See §§ 40–13–3 through -6 (2008). Once a party has violated an order of protection, Section 40–13–6(D) states that “[a] peace officer shall arrest without a warrant and take into custody a restrained party whom the peace officer has probable cause to believe has violated an order of protection that is issued pursuant to the Family Violence Protection Act....” Section 40–13–6(F) states:

A restrained party convicted of violating an order of protection granted by a court under the Family Violence Protection Act is guilty of a misdemeanor and shall be sentenced in accordance with

[305 P.3d 924]

Section 31–19–1 NMSA 1978. Upon a second or subsequent conviction, an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement.

The penalty for a misdemeanor is a jail term of less than one year, or payment of a fine of not more than $1000, or both. NMSA 1978, § 31–19–1(A) (1984).

{13} The statute does not specify any particular mental state or mens rea that a restrained party must demonstrate to be found guilty of this misdemeanor. See§ 40–13–6(D) & (F). The court gave the jury the following instruction regarding the elements of the offense:

For you to find the Defendant guilty of violating a temporary order of protection as charged in Count 1, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. A temporary order of protection was filed in the District Court of Lincoln County, N.M. for Cause Number DV 08–87;

2. The temporary order of protection was valid on November 6, 2008;

3. The Defendant knew about the temporary order of protection;

4. The defendant violated the temporary order of protection;

5. This happened in New Mexico on or about the 6th day of November 2008.

{14} Defendant objected to this instruction, requesting that the jury be instructed that he must have “ knowingly violated the order of protection” in order for the jury to find him guilty. (Emphasis added.) The district judge denied this request, reasoning that “knowingly” was not specified in Section 40–13–6. Instead of including the “knowingly” element in the instruction, the district judge granted Defendant's alternative request to give the jury the general criminal intent instruction consistent with UJI 14–141 NMRA. The general criminal intent instruction provided:

In addition to the other elements of Violation of Restraining Order, the state must prove to your satisfaction beyond a reasonable doubt that the defendant acted intentionally when he committed the crime. A person acts intentionally when he purposely does an act which the law declares to be a crime, even though he may not know that his act is unlawful. Whether the defendant acted intentionally may be inferred from all of the surrounding circumstances, such as...