State v. Schackow
| Decision Date | 21 June 2006 |
| Docket Number | No. 24,137.,24,137. |
| Citation | 2006 NMCA 123,143 P.3d 745 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Matthias SCHACKOW, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.
John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} Defendant appeals his judgment and sentence convicting him of assault with intent to commit a violent felony, attempt to commit criminal sexual penetration in the third degree (attempted CSP III), and attempt to commit kidnapping in the second degree (attempted kidnapping II). On appeal, Defendant raises three issues. First, Defendant asserts that two of his convictions violate the prohibition against double jeopardy. Second, Defendant argues that the district court erred by excluding from evidence photographs of Defendant's face after he was beaten by three men, one of whom was a testifying witness. Third and lastly, pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct.App.1985), Defendant challenges the sufficiency of the evidence to support all of his convictions. We hold that Defendant's convictions for attempted CSP III and assault with intent to commit a violent felony violate the protection against double jeopardy, and vacate the conviction for attempted CSP III. Because we find no merit in Defendant's remaining arguments, we affirm his convictions for attempted kidnapping II and assault with the intent to commit a violent felony.
{2} One morning in April 2002 between 6:15 and 6:30 a.m., Victim left her apartment complex and began to walk to work on her usual route, which takes her on a dirt path through a small open field, across several streets, through an abandoned parking lot, past several buildings and a McDonald's restaurant to a Wal-Mart store, her place of employment. As Victim was crossing the field, she heard a car driving behind her on the dirt path. Victim turned around; the car stopped next to her, and the driver, Defendant, alone in the car, asked Victim if she wanted a ride. Victim politely declined, explaining that she walks every morning, and proceeded down the dirt path. Defendant followed, stopped the car, and again asked Victim if she wanted a ride, which she again declined. Defendant stopped a third time to extend the same invitation, then looked at Victim and stated, "[y]ou work at Wal-Mart." Victim responded that she worked at Wal-Mart and continued to walk to work. Victim testified that she recognized Defendant to be a regular customer at Wal-Mart.
{3} Off the dirt path, Defendant stopped Victim again on the street and more aggressively invited her into the car, which she again refused. As Victim was approaching the McDonald's restaurant, Defendant quickly drove up, stopped the car in front of her, and opened the car door, which prevented her from walking any farther. Victim testified that Defendant exited the car, put a gun to her head and told her "stop now[,]" then stated "[s]uck my dick, bitch, now." Victim testified that she refused Defendant, asked him why he had a gun, and asked him to put it down, stating "you are a man, if you want it so bad, take it, take it like a man." Victim testified that Defendant looked at her strangely and threw the gun. Victim stated that she and Defendant began fighting and hitting each other. Victim said they were both then startled by the noise of a loud horn from a truck, and that is when she pushed the car door into Defendant and ran across the street to the lot next to Wal-Mart. Victim met with work associates and security who called the police.
{4} When the police spoke with Victim she was crying and officers noticed that she had scrapes on her forearms and a cut by her right eye. Victim described Defendant and his car to the police, but could not describe the gun because she never actually saw it, but felt something cold held to her head. The police never found the gun.
{5} Later that day, some of Victim's neighbors and her nephew observed a man in a car, who fit Victim's description of the attacker and of his vehicle, sitting at the corner of their street for several minutes. Omar Wright, a neighbor who resides in Victim's apartment complex, testified that he and another man known as Mike recognized the car and the man from Victim's description, got in their own car, and followed Defendant to a nearby supermarket. They determined that Defendant may have a gun and drove away. Defendant then followed Mr. Wright and Mike back to Victim's apartment building, parked his car, and asked if they were following him. Victim's nephew ran up to Victim's apartment, woke her up, and asked her to come outside to determine if she could identify the man in the car. Victim came out from her apartment and, visibly upset, identified the man to be Defendant, her attacker, and called the police. In the parking lot of the apartment building, the men removed Defendant from the car, beat him, handcuffed him, and waited for the police to arrive.
{6} The State charged Defendant with attempted kidnapping, attempted CSP, and assault with intent to commit a violent felony, all with a firearm enhancement. The jury found Defendant guilty of all charges, but found that the State did not carry its burden of proving that Defendant used a firearm in the commission of the crimes beyond a reasonable doubt. This appeal followed.
{7} On appeal, Defendant argues that two of his convictions violate the constitutional and statutory prohibitions against multiple punishments for the same offense. Defendant also argues that the district court should have admitted photographs of Defendant's beaten face to allow the defense to attack the credibility of a testifying witness who was involved in beating Defendant. Lastly, Defendant challenges the sufficiency of the evidence to support his convictions for attempted kidnapping II, attempted CSP III, and assault with intent to commit a violent felony (CSP). Because insufficient evidence supporting Defendant's convictions may obviate double jeopardy concerns, before addressing Defendant's double jeopardy and evidentiary arguments, we first determine whether Defendant was convicted by sufficient evidence.
{8} Defendant argues pursuant to Franklin and Boyer that his convictions for attempted kidnapping II, CSP III, and assault with intent to commit CSP are not supported by sufficient evidence. In making this determination, we first view the evidence in the light most favorable to the verdict, then determine as a matter of law "whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt." State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation omitted). We do not weigh evidence or substitute our judgment for that of the trial court so long as the jury was presented with "such relevant evidence as a reasonable mind might accept as adequate to support [its verdict]." State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted); accord State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. "Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct.App.1986).
{9} In the present case, for the charge of assault with intent to commit CSP, the jury was instructed to consider whether Defendant tried to touch or apply force to Victim by grabbing her and trying to force her into a car or trying to force her to commit fellatio in a rude, insolent, or angry manner with the intent to touch or apply force to Victim. For the same offense, the jury could alternatively find that Defendant grabbed at Victim and tried to force her into a car or tried to force her to commit fellatio, which caused Victim to believe Defendant was about to intrude on Victim's bodily integrity or personal safety by touching or applying force to her in a rude, insolent, or angry manner; a reasonable person in Victim's circumstances would have held the same belief; and Defendant intended to commit CSP on Victim.
{10} Our review of the evidence presented below indicates that the jury could reasonably find Defendant guilty of assault with intent to commit CSP. Victim testified that Defendant followed her to work, repeatedly asking her to get in the car, opened the car door to stop her movements, threatened her by holding to her head a cold object she believed to be a gun, and demanded, "suck my dick, bitch, now." She further testified that Defendant proceeded to physically fight with her to force fellatio, resulting in Victim's cuts and bruises, as observed by police. By Defendant's own statement to Victim, his violent conduct toward her was designed with the purpose of forcing her to engage in fellatio. Defendant's dedicated efforts to engage Victim, ultimately culminating in his threatening manner and statement to Victim, constitutes sufficient evidence that a reasonable person under these circumstances would have believed that Defendant was going to intrude on her bodily integrity and personal safety in a rude, insolent or angry manner. Viewing the evidence in the light most favorable to support the verdict, we hold that sufficient evidence was presented to support this conviction.
{11} For the charge of attempted kidnapping II, the jury was instructed to consider whether Defendant attempted to...
To continue reading
Request your trial
-
State v. Reed
...jury reasonably could have inferred independent factual bases for the charged offenses." State v. Schackow , 2006-NMCA-123, ¶ 18, 140 N.M. 506, 143 P.3d 745 (internal quotation marks and citation omitted). {10} Pursuant to the statute, the district court instructed the jury that to convict ......
-
State v. Garcia
...conviction. The petty-misdemeanor battery conviction and punishment must be vacated. See State v. Schackow, 2006-NMCA-123, ¶ 25, 140 N.M. 506, 143 P.3d 745. Ineffective {18} We review ineffective assistance of counsel claims de novo. State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204......
-
State v. Serna
..."become the law of the case against which the sufficiency of the evidence is measured." State v. Schackow, 2006-NMCA-123, ¶ 8, 140 N.M. 506, 143 P.3d 745.{18} To find Defendant guilty of possession of a controlled substance, the State had to prove that Defendant knew the cocaine was "on his......
-
State v. Coleman
...relevant evidence as a reasonable mind might accept as adequate to support [its verdict].” State v. Schackow, 2006–NMCA–123, ¶ 8, 140 N.M. 506, 143 P.3d 745 (alteration in original) (internal quotation marks and citation omitted). We analyze the evidence in light of the jury instructions su......