State v. Sotelo, 31,061.

Decision Date22 January 2013
Docket NumberNo. 31,061.,31,061.
PartiesSTATE of New Mexico, Plaintiff–Appellee, v. Jorge Luis SOTELO, Defendant–Appellant.
CourtCourt of Appeals of New Mexico

296 P.3d 1232

STATE of New Mexico, Plaintiff–Appellee,
v.
Jorge Luis SOTELO, Defendant–Appellant.

No. 31,061.

Court of Appeals of New Mexico.

Nov. 8, 2012.
Certiorari Denied, Jan. 17, 2013, No. 33,936.

Certiorari Denied, Jan. 22, 2013, No. 33,953.


[296 P.3d 1235]


Gary K. King, Attorney General, Margaret E. McLean, Assistant Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant.


OPINION

BUSTAMANTE, Judge.

{1} Appellant's motion for rehearing is granted. The opinion filed in this case on October 24, 2012, is withdrawn and this Opinion is substituted in its place.

{2} Defendant appeals his convictions for kidnapping, battery on a household member, and intimidation of a witness on grounds that (1) the district court erred in denying an instruction on the lesser-included offense of false imprisonment, (2) convictions for kidnapping and battery violate the prohibition against double jeopardy, (3) the conduct constituting kidnapping was incidental to the battery, and (4) his counsel was ineffective because he failed to object to improper character evidence at trial and to seek mitigation of Defendant's sentence. Defendant also argues that the district court did not consider mitigating evidence and, therefore, the case should be remanded for resentencing.

{3} We conclude that there is no reasonable view of the evidence such that false imprisonment was the greatest offense committed and, thus, the district court did not err in refusing the request for a lesser-included offense instruction. We determine also that the conduct underlying the kidnapping and battery charges was neither factually unitary nor unitary as a matter of law. Therefore, there was no violation of the prohibition against double jeopardy. Furthermore, the restraint and/or movement involved in this case was not incidental to the battery, and Defendant failed to establish a prima facie case of ineffective assistance based on failure to object to improper character evidence because, even if there were error, there is no evidence that Defendant was prejudiced by the error. We affirm Defendant's convictions. We remand for resentencing after consideration of mitigating circumstances.

BACKGROUND

{4} Defendant and Victim lived together at the time of the incident giving rise to the charges in this case. They have one child. Victim has two other children, one of whom was fifteen years old on July 13, 2009, the date of the incident. Victim testified that Victim and Defendant were at Victim's parents' house on July 12 but left together late in the evening in Victim's car, with Victim driving because Defendant did not have a driver's license. They stopped to get gas, and Defendant got into the vehicle in the driver's seat. Defendant said he would drive the rest of the way to their home half a mile away. Instead, Defendant drove in the opposite direction. Victim asked where they were going, and Defendant responded that he was taking a drive. Defendant continued driving down the Hobbs Highway away from town and, after turning off the highway, drove ten to fifteen minutes to a deserted area. On the way, he told Victim that he wanted to take her to a place with “no cops [and] no phones.” Defendant pulled Victim out of the vehicle and started pulling her hair, kicking her, and throwing her into bushes. Victim testified that during this time, Defendant told her he was going to kill her or leave her there to die, and repeatedly stated that he “did not want to go back to jail.” She stated that when she refused to swear that she would not call the police, he continued beating her. Defendant held Victim's arm while driving to another location on

[296 P.3d 1236]

Derrick Road, where he beat her some more. When Victim attempted to run away, Defendant chased her, put her back in the car, and drove to a third location on Hidalgo Road. Victim testified that Defendant beat her again and forced her to have intercourse with him. After driving around for an hour or two, Defendant drove to their home in the early morning of July 13. Victim's daughter opened the door and told Victim to call the police. Defendant went to the bedroom. Victim then went to the sheriff's department to report the incident.

{5} At trial, Defendant moved for a jury instruction on false imprisonment on the ground that false imprisonment was a lesser-included charge of kidnapping. The judge denied this motion. Defendant was convicted of kidnapping, battery on a household member, and intimidation of a witness. He was acquitted of criminal sexual penetration. At the sentencing hearing, Defendant requested a continuation to prepare a motion for mitigation of the kidnapping sentence, which was granted. A second hearing on November 8, 2010, was also continued. Defendant was sentenced on November 29, 2010. A motion for mitigation was not filed.

{6} Defendant was sentenced to a total of twenty-one years: eighteen years for kidnapping, three years for intimidation of a witness, and 364 days for battery against a household member. The sentences for the latter charges were ordered to run concurrent to each other and consecutive to the kidnapping sentence.

DISCUSSION

{7} We address Defendant's arguments in the order presented.

A. Defendant Was Not Entitled to a Jury Instruction on a Lesser–Included Offense

{8} “The propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar, 1997–NMSC–044, ¶ 49, 123 N.M. 778, 945 P.2d 996. On appeal, the evidence is viewed “in the light most favorable to the giving of the requested instruction.” State v. Hill, 2001–NMCA–094, ¶ 5, 131 N.M. 195, 34 P.3d 139.

{9} There are two prerequisites for a lesser-included offense instruction. First, the district court should “grant the request when the statutory elements of the lesser crime are a subset of the statutory elements of the charged crime.” State v. Meadors, 121 N.M. 38, 44, 908 P.2d 731, 737 (1995). Second,

the trial court should grant ... an instruction [on a lesser-included charge] if (1) the defendant could not have committed the greater offense in the manner described in the charging document without also committing the lesser offense ...; (2) the evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; and (3) the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.

Id. Although the Meadors test applied to a prosecution request for an instruction on a lesser-included charge and focused on protection of the defendant's due process rights, this Court applied it to a defendant's request for such an instruction in Darkis. See State v. Darkis, 2000–NMCA–085, ¶ 14, 129 N.M. 547, 10 P.3d 871. When it is the defendant requesting a lesser-included offense instruction, “the appropriate focus is ... on the facts the [s]tate had arrayed and the theory of its case.” Id. ¶ 15. This analysis entitles a defendant to a lesser-included offense instruction when the evidence supports the lesser-included offense. Id. ¶ 17.


{10} In reviewing on appeal whether a reasonable jury could find that the lesser-included offense is the highest offense committed, “[w]e will not ‘fragment the testimony ... to such a degree as to distort it’ in order to construct a view of the evidence which would support the giving of the instruction.” State v. Gaitan, 2002–NMSC–007, ¶ 24, 131 N.M. 758, 42 P.3d 1207 (second alteration in original) (citation omitted). In State v. Wilson, the Court held that a lesser-included offense instruction was properly denied where the defendant sought to show that the jury could have believed portions of

[296 P.3d 1237]

testimony by both the victim and defendant and rejected other portions. 117 N.M. 11, 15, 868 P.2d 656, 660 (Ct.App.1993). It held that “there must be some evidence other than that obtained by taking portions of the victim's and portions of the defendant's testimony to support the lesser-included offense instruction.... When there is other evidence [to support the lesser-included offense instruction], then the risk of impermissible distortion [of the testimony] is eliminated.” Id.

{11} Defendant argues that “[t]he jury was free to reject [Victim's] ... testimony that [Defendant] expressed a kidnapping intent ..., especially in light of the significant impeachment of her credibility which resulted in acquittal for the [criminal sexual penetration] charge” and, therefore, there was “some view of the evidence that [false imprisonment] was the most serious offense committed.” The State responds, in essence, that no reasonable juror could find that false imprisonment was the highest offense committed because to do so would “requir[e] an impermissible fragmentation of the evidence, picking and choosing among elements of a single witness's testimony.”

{12} It is clear that the first Meadors prerequisite is met because false imprisonment is a subset of kidnapping. False imprisonment is “intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so.” NMSA 1978, § 30–4–3 (1963). Kidnapping requires “the unlawful taking, restraining, transporting or confining of a person, by force, intimidation or deception, with intent ... to inflict death, physical injury[,] or a sexual offense on the victim.” NMSA 1978, § 30–4–1(A)(4) (2003). The difference between these two statutes is found in kidnapping's intent requirements. See State v. Clark, 80 N.M. 340, 343, 455 P.2d 844, 847 (1969) (“Merely to confine or restrain against a person's will without the requisite intention is not kidnapping. This is false imprisonment ... when done with knowledge of an absence of authority.”...

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