State v. Uribe-Vidal

• Decision Date: 14 September 2017
• Docket Number: NO. A-1-CA-34058,A-1-CA-34058
• Citation: 409 P.3d 992
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Juan URIBE-VIDAL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

409 P.3d 992

STATE of New Mexico, Plaintiff-Appellee,

v.Juan URIBE-VIDAL, Defendant-Appellant.

NO. A-1-CA-34058

Court of Appeals of New Mexico.

Filing Date: September 14, 2017

Hector H. Balderas, Attorney General Santa Fe, NM, Elizabeth Ashton, Assistant Attorney General, Albuquerque, NM, for Appellee.

L. Helen Bennett, P.C., L. Helen Bennett, Albuquerque, NM, for Appellant.

FRENCH, Judge.

{1} This appeal stems from a jury verdict convicting Defendant Juan Uribe-Vidal of eleven counts of aggravated assault upon a peace officer (deadly weapon), contrary to NMSA 1978, Section 30-22-22(A)(1) (1971), and one count of aggravated battery upon a peace officer (deadly weapon), contrary to NMSA 1978, Section 30-22-25(C) (1971). Defendant raises four issues on appeal: (1) the State presented insufficient evidence to sustain the convictions, (2) the convictions violate Defendant's right to be free from double jeopardy, (3) defense counsel's failure to present evidence proving Defendant's innocence violated Defendant's right to effective assistance of counsel, and (4) Defendant's sentence constitutes cruel and unusual punishment. We affirm.

BACKGROUND

{2} On November 23, 2012, officers from the Lea County Sheriff's Office and the Hobbs Police Department attempted to execute a search of Defendant's residence pursuant to a warrant. The officers were organized into two SWAT teams, one for a camper on the property and one for a mobile home on the property. The officers arrived at Defendant's property in an armored patrol carrier and, upon exiting the vehicle, one SWAT team began walking toward the camper and the other began walking toward the mobile home. Officer Tovar was part of the SWAT team tasked with entering the camper. When that team was close to the front door of the camper, another officer gave the command for Officer Tovar to deploy a distractionary device, which would emit smoke and conceal their movement. Immediately after Officer Tovar deployed the distractionary device, the officers—including Officer Tovar—heard and saw gunfire coming from the camper. As soon as the officers heard the shots, they tried to take cover behind a nearby tree and another vehicle parked on Defendant's property. When Officer Tovar took cover behind the vehicle, he discovered that he had been shot in his right arm. He remained behind the vehicle until the firefight was over, which lasted about twenty-one seconds and included the exchange of rounds fired from the camper and several rounds fired by one of the officers in front of the camper. Once the gunfire ceased, two officers helped get Officer Tovar back to the armed patrol carrier, and the individuals inside the camper were ordered to come out. Defendant and six others were arrested outside the camper.

{3} Law enforcement seized from the camper various firearms, a grenade, a gas mask, a bulletproof vest, and an explosive device. They also discovered a video surveillance system inside the camper, which displayed the area in front of the camper where the SWAT teams had assembled. All of the officers said they could not see who was firing at them from inside the camper, but the gunfire appeared to come from the window and the doorway of the camper.

{4} Defendant was charged with thirteen counts of aggravated assault on a peace officer (deadly weapon), one charge for each of the officers present that day, and one count of aggravated battery on a peace officer (deadly weapon), for Officer Tovar, the officer who was shot in the arm. Two counts of aggravated assault were dismissed by directed verdict by the district court before being submitted to the jury. In addition to its substantive instructions, the jury was also instructed on accessory liability. The jury found Defendant guilty of eleven counts of aggravated assault on a peace officer and one count of aggravated battery on a peace officer. Defendant was sentenced to a total of twenty years imprisonment, minus 492 days credit for time served. Defendant appeals his convictions based on the sufficiency of the evidence, double jeopardy, ineffective assistance of counsel, and cruel and unusual punishment.

DISCUSSION

Sufficiency of the Evidence

{5} Defendant asserts that there was insufficient evidence to support all of his convictions because the testimony at trial only established that while Defendant owned the property and was present in the camper during the firefight, he was on the floor, not near the window or door from which the shots were fired. Defendant emphasizes the absence of evidence proving that he possessed a gun during the firefight and notes that the DNA evidence from one of the guns only established that Defendant handled the gun at some point in time. Defendant argues it is therefore not reasonable to infer that he shot at the officers outside. Defendant also notes the absence of ballistics tests that could have proven which rounds were fired by the gun that Defendant allegedly handled during the firefight, and argues the State made no effort to determine which of the guns caused Officer Tovar's injury. Therefore, Defendant argues the jury could only have speculated that Defendant participated in the firefight based upon his presence in the camper.

{6} "The sufficiency of the evidence is reviewed pursuant to a substantial evidence standard." State v. Treadway , 2006-NMSC-008, ¶ 7, 139 N.M. 167, 130 P.3d 746. When reviewing a challenge to the sufficiency of the evidence, we determine "whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Sutphin , 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. "[W]e must view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. "In our determination of the sufficiency of the evidence, we are required to ensure that a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction." State v. Duran , 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). "Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject [the d]efendant's version of the facts." State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

{7} The State argues it presented evidence sufficient to support Defendant's convictions because it proceeded on a theory of accessory liability and the evidence determined that Defendant "watched, waited, encouraged, and caused" the criminal conduct. We agree. See State v. King , 2015-NMSC-030, ¶ 21, 357 P.3d 949 (noting that "New Mexico long ago abolished the distinction between accessory and principal liability" and "[t]he charge against [the d]efendant as a principal include[s] a corresponding accessory charge, assuming the evidence at trial supported the charge" (internal quotation marks omitted)). Where the State's theory of the case includes accomplice liability, the jury is accordingly instructed and "[t]he sufficiency of the evidence is assessed against the jury instructions because they become the law of the case." State v. Quiñones , 2011-NMCA-018, ¶ 38, 149 N.M. 294, 248 P.3d 336.

{8} Specifically, the State presented evidence showing that Defendant owned and was inside the camper at the time of the firefight. The State also called as a witness the forensics expert who ran various tests—cartridge casing comparison tests, bullet comparison tests, and function tests—on the cartridge casings and firearms found inside the camper. Of the thirteen firearms found within the camper and provided to the forensics expert for testing, he was able to identify cartridge casings with the .45 caliber colt, the AR-15 caliber rifle, the .40 caliber glock, and the .40 caliber beretta pistol. The bullets that hit Officer Tovar matched the .40 caliber beretta pistol found inside the camper. The State also presented the results of DNA tests performed on several of the firearms. Defendant was not eliminated as a contributor to the DNA found on the beretta pistol. The other six individuals inside the camper were eliminated as contributors to the DNA mixture found on the magazine of the beretta pistol, but there was no conclusion about Defendant being "a possible contributor." Defendant was also found to be a "major contributor" on another firearm, while everyone else in the camper was eliminated, and Defendant was found to be "the source of the major DNA profile" on another one of the many firearms found inside the camper.

{9} From this, it was reasonable for the jury to infer that Defendant either shot at the officers himself, or, given the presence of the surveillance system and the availability of firearms and ammunition inside his camper, Defendant encouraged, helped, or caused others to shoot at the officers. Despite the difficulty in proving which of the seven individuals inside the camper actually shot the three guns, there was evidence sufficient to convict Defendant as an agent of the crimes. See State v. Bahney , 2012-NMCA-039, ¶ 26, 274 P.3d 134 (noting that "we need only find sufficient evidence under one of the theories presented to uphold [the d]efendant's convictions," and choosing "to address each of the ... crimes under the [s]tate's theory of accessory liability"). Given all the evidence presented and the alternative manner used to charge Defendant, as well as prove the State's case at trial, we conclude that sufficient evidence supports each of Defendant's convictions.

Double Jeopardy

{10} Defendant argues that the jury's separate guilty verdicts for one count of aggravated assault and one count of aggravated battery, both involving Officer Tovar as the victim, violated the Double Jeopardy Clause. Whether separate...