State v. Villanueva, 011921 NMCA, A-1-CA-37353

Docket NºA-1-CA-37353
Opinion JudgeJANE B. YOHALEM, Judge.
Party NameSTATE OF NEW MEXICO, Plaintiff-Appellee, v. CARLOS J. VILLANUEVA a/k/a CARLOS MCMAHON, Defendant-Appellant.
AttorneyHector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender John C. Bennett, Assistant Appellate Defender Santa Fe, NM for Appellant
Judge PanelWE CONCUR: MEGAN P. DUFFY, Judge, SHAMMARA H. HENDERSON, Judge.
Case DateJanuary 19, 2021
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.

CARLOS J. VILLANUEVA a/k/a CARLOS MCMAHON, Defendant-Appellant.

No. A-1-CA-37353

Court of Appeals of New Mexico

January 19, 2021

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY Geraldine E. Rivera, District Judge.

Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

Bennett J. Baur, Chief Public Defender John C. Bennett, Assistant Appellate Defender Santa Fe, NM for Appellant

OPINION

JANE B. YOHALEM, Judge.

{¶1} Defendant Carlos Villanueva appeals his conviction for criminal contempt, in violation of NMSA 1978, Section 34-1-2 (1851) and Rule 1-093(B)(1) NMRA. Defendant contends that: (1) there was insufficient evidence to support his conviction; (2) the jury instructions were unconstitutionally vague and overbroad; (3) fundamental error in the jury instructions requires reversal; (4) the district court erroneously excluded from evidence a recording of Defendant's encounter with the judge; and (5) the State failed to obtain an order appointing the district attorney to prosecute the case. We reject each of Defendant's contentions and affirm his conviction.

BACKGROUND

{¶2} Defendant was convicted of criminal contempt for his conduct on or about April 3, 2017. On that date, Defendant made several attempts to contact the district court judge presiding over a child support case pending in the Thirteenth Judicial District Court for the purpose of influencing the judge to recuse himself. Defendant's efforts culminated in a confrontation with the judge outside a local restaurant where Defendant attempted to convince the judge to withdraw from the case.

{¶3} Defendant had contacted the Thirteenth Judicial District Court clerk's office the week before April 3, 2017, to request documents from the case file in a pending child support case. Defendant spoke on the phone with Pablita Cohoe, a clerk, and identified himself as a private investigator.

{¶4} The following week, on April 3, 2017, Defendant came into the district court clerk's office to speak to Cohoe. Cohoe testified that Defendant objected to the court noting his name in the file. She told him it was the practice of the court to note the name of anyone who reviewed a file. He then asked to speak to Judge Pedro Rael, the judge assigned to the pending child support case. Cohoe told Defendant that he would have to file a motion and request a hearing.

{¶5} Shortly after Defendant left the clerk's office, a court security officer, Mike Hawkins, observed Defendant knocking on a door marked "no entry" that leads to Judge Rael's chambers. Matthew MacEachen, administrative assistant to Judge Rael, testified that Defendant came to Judge Rael's door with another man asking to speak to Judge Rael about a pending case. MacEachen told Defendant that Judge Rael could not discuss a case without all parties present. Defendant then told MacEachen that he was an "old friend" of Judge Rael.

{¶6} Judge Rael did not recognize Defendant's name. He told MacEachen to tell Defendant to file a motion. MacEachen testified that he told Defendant that the proper way to contact Judge Rael is to call or email MacEachen explaining who he is, what he wants from a proposed meeting, and how much of Judge Rael's time he would need. MacEachen also testified that Defendant called Judge Rael's office about the pending child support case on two occasions, though he could not recall if the calls were before or after their April 3, 2017, encounter at the court. Each time Defendant called, the caller ID read "Diane Levario." Levario was a party to the pending child support case.

{¶7} Around noon on April 3, 2017, Judge Rael drove from the courthouse to a restaurant to meet a friend for lunch. The restaurant was four to six miles from the courthouse; the drive took ten to fifteen minutes. When Judge Rael arrived at the restaurant, he saw three men he did not recognize walking rapidly toward him. Two of the men blocked the door to the restaurant so that Judge Rael "would have to push one of them over if [he] was going to keep going through the restaurant door." The third man shook Judge Rael's hand and identified himself as Defendant. Defendant then told Judge Rael that he needed to recuse himself from the pending child support case involving Levario because Defendant had information showing Judge Rael was personally acquainted with the parties. Judge Rael testified that he told Defendant "I don't know what you're talking about," to which Defendant replied, "I have pictures of you with the parties." Defendant then started flipping through photos on his cell phone, putting the phone "very close" to Judge Rael's face. Judge Rael told Defendant that he did not see himself in the photographs. Without informing Judge Rael, Defendant was making an audio recording of the interaction on his phone. Judge Rael told Defendant, "You have to file a motion," and pushed past the two men into the restaurant. Defendant and the two men with him left after Judge Rael entered the restaurant.

{¶8} Judge Rael testified that his "state of concern was extremely high" by the end of the interaction. He felt certain that Defendant and the other men followed him from the courthouse to the restaurant. He testified that the route from the court to the restaurant is "not easy to follow, unless you know how to get there."

{¶9} That afternoon, after the encounter at the restaurant, Defendant telephoned the courthouse, asking to speak to Judge Rael. Judge Rael instructed the courthouse staff to tell Defendant not to call anymore. Judge Rael also entered an order to show cause why Defendant should not be held in contempt. Following a hearing, at which Defendant appeared and testified, Judge Rael turned the matter over to the district attorney to determine whether to bring criminal contempt charges against Defendant. The district attorney charged Defendant with contemptuous conduct in violation of Section 34-1-2 and Rule 1-093(B)(1). 1 Following a jury trial, Defendant was convicted of criminal contempt, pursuant to Section 34-1-2.

I. Defendant's Conviction of Criminal Contempt Is Supported by Substantial Evidence

{¶10} Defendant first argues that the State's evidence was insufficient to support a conviction for criminal contempt, pursuant to Section 34-1-2 and Rule 1-093(B)(1). We disagree.

A. Standard of Review

{¶11} "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. Ford, 2019-NMCA-073, ¶ 7, 453 P.3d 471 (internal quotation marks and citation omitted). We "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 doing so, the Court "should not re-weigh the evidence to determine if there was another hypothesis that would support innocence." State v. Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72. The relevant question is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (internal quotation marks and citation omitted).

B. Sufficiency of the Evidence

{¶12} In this case, the jury was instructed that to enter a verdict of guilty of criminal contempt, the State must prove beyond a reasonable doubt each of the following elements of the crime: (1) "[D]efendant engaged in contemptuous conduct[, ]" and (2) the conduct "happened in New Mexico on or about the 3rd day of April, 2017." The jury was also given a definitional instruction defining "contempt" or "contemptuous conduct" taken verbatim from Rule 1-093(B)(1), as follows: "Contempt" or "contemptuous conduct" includes but is not limited to, (a) disorderly conduct, insolent behavior, or a breach of peace, noise, or other disturbance, if such behavior actually obstructs or hinders the administration of justice or tends to diminish the court's authority,

(b) misconduct of court officers in official transactions, or

(c) disobedience of any lawful order, rule, or process of the court.

"Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883.

{¶13} Defendant argues first that the evidence in the record was insufficient to establish that he engaged in "disorderly conduct, insolent behavior, or a breach of [the] peace, noise, or other disturbance" required to convict of contempt, pursuant to Rule 1-093(B)(1)(a) of the definitional instruction. He points to the absence of evidence showing that his conduct created a physical disturbance, posed a threat to the judge or court personnel, disrupted courtroom proceedings, or disturbed the peace. Defendant's argument assumes, without citation to authority, that either a use of force, a physical threat, or a disturbance directly interfering with proceedings in the courtroom is required to convict of contempt. We do not agree that the jury instruction limited contempt to these types of behavior.

{¶14} The jury instruction defining contempt provides that, in addition to disorderly conduct, or a breach of the peace, noise or other disturbance, "insolent behavior" is sufficient to convict of contempt providing that "such behavior actually obstructs or hinders the administration of justice or tends to diminish the court's authority." In construing a jury instruction, we look to the meaning a reasonable...

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