State v. Vigil
| Decision Date | 03 March 2021 |
| Docket Number | No. A-1-CA-36921,A-1-CA-36921 |
| Citation | 489 P.3d 974 |
| Court | Court of Appeals of New Mexico |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Frank VIGIL, Jr., a/k/a Frankie Vigil, Defendant-Appellant. |
Hector H. Balderas, Attorney General, Santa Fe, NM, Charles J. Gutierrez, Assistant Attorney General, Albuquerque, NM, for Appellee
Bennett J. Baur, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant
{1} Defendant Frankie Vigil appeals his convictions for (1) use of a telephone "to terrify, intimidate, threaten, harass, annoy or offend," in violation of NMSA 1978, Section 30-20-12(A) (1967) ; and (2) "[b]ribery or intimidation of a witness[,]" in violation of NMSA 1978, Section 30-24-3(A)(2) (1997). Defendant challenges his convictions on three grounds: (1) the evidence is insufficient to identify him as the perpetrator of either offense; (2) his conviction of both offenses, allegedly for the same conduct, violates the Double Jeopardy Clause of the United States Constitution; and (3) his due process rights were violated by a delayed appeal. Unpersuaded, we affirm.
{2} The following evidence was presented during Defendant's trial pursuant to a criminal information filed on April 19, 2017, charging Defendant with "[u]se of a telephone to terrify, intimidate, threaten, harass, annoy or offend," in violation of Section 30-20-12(A) ; and "[b]ribery or intimidation of a witness[,]" in violation of Section 30-24-3(A)(2). Defendant and Victim are married, and have two children together. They married in 2009, and have been separated since 2010.
{3} Victim testified that Defendant broke the windshield of her car on December 1, 2016. Victim reported the incident to the police. The police came to Victim's house to investigate the broken windshield. Right after the police left, Victim received two voicemails.
{4} In the first voicemail, the caller tells Victim, "I've been at your house, and I'm still here," calls Victim a "rat bitch[,]" and threatens to kill her for ratting him out. Then, in the second voicemail, the caller tells Victim, "I'll get to you before they get to me ... because you are done you ... nasty ass[.]" At trial, Victim identified Defendant as the caller. Victim testified that she knew the caller was Defendant because she recognized his voice; she recognized Defendant's cell phone number on the voicemails; the caller said he was directly outside her house; and the threats were made the same day Defendant broke her windshield, just after the police left her house. Victim also testified that Defendant was one of the few people who knew where she lived.
{5} Defendant was prosecuted in the Silver City Magistrate Court for domestic violence related to breaking Victim's windshield. That case was set for trial on January 31, 2017, and Victim was subpoenaed as a witness. The day before Defendant's trial, on January 30, 2017, Victim received a telephone call from a blocked number. Victim stated she knew the caller was Defendant because she recognized his voice, and because she had been subpoenaed to testify at his trial the next day. The caller told Victim that if she showed up to court the next day, he was going to hurt her. The caller also told Victim that she knew he would beat the charge anyway, even if she testified against him.
{6} Despite the phone call, Victim appeared at magistrate court to testify at Defendant's trial on January 31, 2017. Victim stated she was scared to testify against Defendant, but the subpoena said she could be prosecuted if she did not show up, so she went to court despite being afraid. After arriving at magistrate court, Victim told Sergeant Arthur Rascon, of the Silver City Police Department, about the call she received on January 30, 2017, and about the voicemails she received on December 1, 2016. Victim played the voicemails for Sergeant Rascon, who recorded them on his body cam. These voicemails were played at trial over Defendant's objection as to lack of authenticity and foundation.
{7} At the close of the State's case, a jury convicted Defendant of use of a telephone to terrify, intimidate, threaten, harass, annoy or offend[,]" pursuant to Section 30-20-12(A), occurring on or about December 1, 2016, through January 30, 2017, and "[b]ribery or intimidation of a witness[,]" pursuant to Section 30-24-3(A)(2), occurring on or about December 1, 2016, through January 30, 2017. This appeal followed.
{8} Defendant challenges each of his convictions, claiming that the State failed to prove beyond a reasonable doubt that Defendant was the person who telephoned Victim on December 1, 2016, leaving two voicemail messages on her cell phone, and who called and spoke to Victim on January 30, 2017.1 Because admissibility of the telephone calls is not contested on appeal, we review the sufficiency of the evidence to support the jury's decision.
{9} "The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Storey , 2018-NMCA-009, ¶ 45, 410 P.3d 256 (alterations, internal quotation marks, and citation omitted). We "view the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict." Id. (internal quotation marks and citation omitted). Next, we determine "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." Id. (internal quotation marks and citation omitted). "[W]e do not weigh the evidence or substitute our judgment for that of the fact finder so long as there is sufficient evidence to support the verdict. Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (alterations, internal quotation marks, and citation omitted).
{10} "Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." State v. Garcia , 2016-NMSC-034, ¶ 17, 384 P.3d 1076 (alteration, internal quotation marks, and citation omitted). The instruction given the jury on the elements of use of a telephone to "terrify, intimidate, threaten, harass, annoy or offend" required the State to prove beyond a reasonable doubt:
{11} The jury was instructed that to convict Defendant of "[b]ribery or intimidation of a witness" the State had to prove beyond a reasonable doubt:
{12} The primary evidence at trial identifying Defendant as the person who called Victim on December 1, 2016, and January 30, 2017, was the testimony of Victim. Victim testified that she was confident that the caller on both December 1, 2016, and January 30, 2017, who left the voicemail messages and who she spoke to on a relative's phone, was Defendant. She reported being familiar with Defendant's voice from the many years they had been married. As to the December 1, 2016, voicemails, Victim testified that, in addition to recognizing Defendant's voice, she recognized the telephone number as Defendant's cell phone number.
{13} Victim also testified to the circumstances surrounding the December 1, 2016, voicemails. She testified that Defendant had appeared at her home on the afternoon of December 1, 2016. An altercation occurred, and Defendant broke the windshield on her car. Victim testified that she called the police, who came to her house that same afternoon to investigate the broken windshield, and once police left she received a call from a number she recognized as Defendant's cell phone number. When she did not answer, Defendant left a voicemail, and then called back and left a second voicemail. The voicemails stated that the caller was near Victim's house, and accused Victim of "ratting [him] out." Victim's description of the content of the voicemails was confirmed by the bodycam recording made by Sergeant Rascon from Victim's cell phone. Although the recording was not completely clear, the tone of the call and enough of the content to confirm Victim's testimony was audible. The content of the call was consistent with Victim's testimony that Defendant had been at her home when he broke her windshield, and was likely nearby watching the police arrive and then leave.
{14} Victim's familiarity with Defendant's voice far exceeded the familiarity from just a few previous phone calls that we have found sufficient to identify a voice. See State v. Padilla , 1982-NMCA-100, ¶ 5, 98 N.M. 349, 648 P.2d 807 (); see also State v. Romero , 2019-NMSC-007, ¶ 43, 435 P.3d 1231 (...
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