State v. Lozoya
2017 NMCA 52
N.M. Ct. App.2017Background
- At an Alamogordo house party, defendant Brandon Lozoya accepted a ride to Walmart with two females, one identified at trial as a 15-year-old ("Child").
- Inside Walmart, Child removed two bottles of alcohol into her purse; Child testified she discussed shoplifting with Lozoya and that he acted as a lookout and pointed out bottles; Lozoya denied knowing of the theft or Child’s age.
- Walmart loss-prevention stopped them, the items were returned, police were called, and both were detained; Lozoya was charged with contributing to the delinquency of a minor (CDM) (felony) and shoplifting under $250 (petty misdemeanor).
- Lozoya testified at trial; the court allowed impeachment with a prior robbery conviction; the prosecutor’s closing referenced Lozoya’s prior convictions, the presence of a condom found on him, and suggested improper sexual motives toward the minor.
- A jury convicted Lozoya of both CDM and shoplifting; on appeal Lozoya raised double jeopardy, statutory-construction and sufficiency arguments, challenges to jury instructions, impeachment evidence, and prosecutorial misconduct.
- The Court of Appeals vacated the shoplifting conviction on double jeopardy grounds and affirmed the CDM conviction.
Issues
| Issue | State's Argument | Lozoya's Argument | Held |
|---|---|---|---|
| Double jeopardy from unitary conduct (CDM + shoplifting) | Lesser punishment conviction (shoplifting) should be vacated; when double jeopardy requires vacatur, the conviction with shorter sentence is vacated | Section 30-16-20(C) indicates Legislature intended shoplifting to be the sole charge in single-transaction cases; if ambiguous, apply lenity to vacate CDM | Vacate shoplifting conviction and affirm CDM; follow precedent of vacating the lesser-punished conviction; rule of lenity does not require vacating CDM |
| Sufficiency — whether "allowed Child to shoplift" is a legally adequate basis for CDM | Evidence (Child’s testimony, asset-protection observations) supports finding Lozoya ‘‘allowed’’ or aided the theft; they were not strangers | Asserts as a near-stranger he had no duty to stop a third party and omission alone is insufficient | Held legally adequate: jury could reasonably find Lozoya not a stranger and that his conduct allowed the shoplifting |
| Sufficiency — whether prosecution needed to prove Lozoya knew Child was under 18 | CDM protects children broadly; mental-state requirement applies to contributing act, not to knowledge of age; requiring knowledge of age would frustrate statute’s protective purpose | CDM should require proof defendant knew child was a minor | Held no knowledge-of-age element required; CDM does not require proof defendant knew the child's age |
| Impeachment with prior conviction and prosecutorial closing comments | Impeachment allowed under Rule 11-609 because Lozoya testified; prior robbery admissible and probative; some closing argument comments were based on admitted evidence | Prior robbery remote and not a dishonesty offense; prosecutor’s sexual-predator comments were improper and prejudicial | Court found admission of prior robbery not an abuse of discretion; some prosecutorial comments improper but isolated and not fundamental error; conviction stands for CDM |
Key Cases Cited
- Griffin v. United States, 502 U.S. 46 (1991) (jurors cannot be expected to decide legal adequacy of alternative statutory theories)
- Gorman v. People, 19 P.3d 662 (Colo. 2000) (culpable mental state may not apply to statute’s age element)
- State v. Montoya, 306 P.3d 426 (N.M. 2013) (when double jeopardy requires vacatur, vacate the conviction carrying the lesser punishment)
- State v. Ramirez, 198 P.3d 866 (N.M. Ct. App. 2008) (Section 30-16-20(C) shows legislative intent to avoid multiple charges arising from single shoplifting episode)
- State v. Pitts, 714 P.2d 582 (N.M. 1986) (CDM statute constitutional despite lack of criminal intent element)
- Cuevas v. 617 P.2d 1307 (N.M. 1980) (statute’s purpose is to protect children from harmful adult conduct)
- McKinley v. 202 P.2d 964 (N.M. 1949) (broad protection of youth under predecessor CDM statute)
- State v. Day, 577 P.2d 878 (N.M. Ct. App. 1978) (robbery involves dishonesty for impeachment purposes)