State v. DominguezState v. Dominguez
OPINION
{1} In this case, both Defendant and the State appeal following Defendant’s convictions for kidnapping and second-degree criminal sexual penetration (CSP II). Defendant argues that his convictions for kidnapping and CSP II violate double jeopardy, that the State presented insufficient evidence for either conviction, and that the prosecutor committed prosecutorial misconduct. Conversely, the State argues that the district court erred when it modified Defendant’s conviction for first-degree kidnapping to second-degree kidnаpping because the jury was not given a special verdict form asking them to find whether Defendant committed a sexual offense against Victim. Finding none of Defendant’s contentions meritorious, we affirm his convictions. However, we conclude that the district court erred in modifying Defendant’s conviction and remand to reinstate Defendant’s conviction for first-degree kidnapping.
BACKGROUND
{2} Victim was home alone asleep with her young daughter when she was awoken by the sound of knocking and noticed a man outside her bedroom window. Victim went to the front door to see who was there and was confronted by Defendant, who asked whether her father-in-law or her husband were home. After Victim told him that neither was home, Defendant asked if she had a gas can he could borrow because he had run out of gas. Defendant waited at the front door while Victim went to look for the gas can. When Victim told Defendant that she did not have one, Defendant then asked if he could use her restroom. Victim testified that although she did not know Defendant, she allowed him into the home because she thought Defendant knew her father-in-law.
{3} Defendаnt entered Victim’s home and went to the bathroom. When Defendant emerged from the bathroom, he pulled a gun from the pocket of his hooded sweatshirt. Defendant put the gun to Victim’s head and told her he planned to rape her. Defendant further threatened to kill Victim’s daughter if she did not comply. Defendant, however, agreed to Victim’s requests that he wear a condom and not rape her in the living room because it was adjacent to the room where her daughter was sleeping. While holding the gun to Victim’s head, Defendant then followed Victim to the kitchen, where she retrieved a condom, and to a second bedroom, where he vaginally raped Victim.
DISCUSSION
{4} We begin our analysis with Defendant’s contention that his convictions for kidnapping and CSP II violate double jeopardy. Due to the similarity between Defendant’s double j eop ardy argument and his argument that there is insufficient evidence to support his kidnapping conviction, our resolution of Defendant’s double jeopardy argument is largely determinative of his insufficiency of the evidence argument. Indeed, in the context of combined kidnapping and sexual offense convictions, these two areas of law have generated considerable analytical overlap in our case law. See, e.g., State v. Allen,
I. Double Jeopardy and the Independent Factual Basis to Support Defendant’s Conviction for Kidnapping
A. Double Jeopardy
{5} The State charged Defendant with CSP II on the basis of his use of a gun during the CSP. See NMSA 1978, § 30-9-11(E)(6) (2009) (stating that CSP II includes CSP perpetrated “when the perpetrator is armed with a deadly weapon”). The State also charged Defendant with kidnapping, and the jury was instructed that the elements of kidnapping were Defendant’s taking, restraint, confinement, or transportation of Victim “by force, intimidation],] or deception” and Defendant’s intending to “hold [Victim] against [her] will to inflict a sexual offense on [her].” Because CSP II by dеfinition includes “some force or restraint,” State v. Crain,
{6} “The Fifth Amendment of the United States Constitution prohibits double jeopardy and is made applicable to New Mexico by the Fourteenth Amendment.” State v. Swick,
{7} The double jeopardy clause provides three separate constitutional protections. It provides protection from (1) “a second prosecution for the same offense after acquittal],]” (2) “a second prosecution for the same offense after conviction[,]” and (3) “multiple punishments for the same offense.” State v. Montoya,
{8} “Conduct is not unitary if sufficient indicia of distinctness separate the transaction into several acts.” Montoya,
{9} Relying on this Court’s decision in Montoya, Defendant argues that the conduct supporting both convictions was unitary because the jury may have relied upon the fact that Defendant used the same type of force — the gun — as the basis for both convictions. Montoya,
{10} Regardless of which alternative the jury relied on, we conclude that Defendant’s conduct was not unitary because either alternative — kidnapping by deception or by force — was factually distinct from the conduct supporting the CSP II conviction. See State v. Francо,
{11} Because we conclude that Defendant’s conduct was not unitary, we do not proceed to the second part of the Swafford analysis. Being non-unitary, Defendant’s convictions do not violate double jeopardy.
B. Sufficiency of the Evidence for Kidnapping
{12} For these same reasons, we reject Defendant’s contention that the force used to convict Defendant of kidnapping was incidental to the CSP II. See State v. Trujillo,
II. Modification of Defendant’s Conviction
{13} The uniform jury instructions necessary to convict a defendant of first-degree kidnapping are split into two instructions. See UJI 14-403 NMRA Use Note 1 (stating that where first-degree kidnapping is in issue, UJI 14-6018 NMRA must also be given). UJI 14-403 contains the essential elements of the offense, while UJI 14-6018 contains specific interrogatories asking whether the jury finds that the defendant did not voluntarily free the victim or whether the defendant inflicted physical harm or committed a sexual offense upon the victim. If the jury answers any of these questions in the affirmative — assuming it also found the essential elements were met — the defendant is guilty of first degree kidnapping. See UJI 14-6018 Use Note 1 (“The defendant may be found guilty of first degree kidnapping if the jury answers any or all of the above questions, ‘yes.’ If none of the questions is answered ‘yes,’ the defendant is guilty of second degree kidnapping.”).
{14} Following Defendant’s convictions for CSP II and kidnapping, the district court initially orally sentenced Defendant to eighteen years for first-degree kidnapping. See NMSA 1978, § 31-18-15(A)(3) (2007) (providing for eighteen-year sentences for first-degree felonies). Defendant refused to approve the judgment and sentencing order and instead filed a motion to quash the sentence. Defendant argued that because the jury had not been given the kidnapping special verdict form, the kidnapping jury instruction submitted to the jury was only sufficient to convict him of second-degree kidnapping. See UJI 14-403 (kidnapping essential elements jury instruction); UJI 14-6018 (special verdict form for kidnapping). The district court ultimately agreed with Defendant and concluded that the special verdict form is mandatory in all first-degree kidnapping cases. State v. Gallegos,
{15} On appeal, the State’s argument is two-fold. First, the State argues that to the extent the special verdict form required the jury to find that Defendant committed a sexual offense against Victim in order to convict him of first-degree kidnapping, the special verdiсt form is in conflict with our kidnapping statute. Second, the State argues that because the jury independently found Defendant guilty of CSP II, they had necessarily found the facts needed to convict Defendant of first-degree kidnapping regardless of the omission of the special verdict form. We agree with the State’s second contention that it was error for the district court to modify Defendant’s conviction because the jury specifically found that Defendant committed a sexual offense against Victim. We therefore reverse the district court’s modification of Defendant’s sentence.
{16} Our kidnapping statute defines kidnapping as “the unlawful taking, restraining, transporting or confining of a person, by force, intimidation or deception, with intent... to inflict ... a sexual offense on the victim.” NMSA 1978, § 30-4-l(A)(4) (2003). Subsection B states that “[wjhoever commits kidnapping is guilty of a first}-] degree felony, except that he is guilty of a second[-]degree felony when he . . . does not inflict... a sexual offense upon the victim.” Section 30-4-1 (B). The kidnapping essential elements uniform jury instruction substantially tracks the elements that the kidnapping statute defines as a first-degree kidnapping. See UJI 14-403. Thus, it would appear that where the jury in this case found that Defendant restrained Victim by force or deception with the intent to inflict a sexual offense upon her, Defendant was found guilty of first-degree kidnapping. It would also stand to reason, based on our kidnapping statute as written, that only if the jury found that Defendant did not actually commit the intended sexual offense could his offense constitute second-degree kidnapping.
{17} Nevertheless, we must take into account the UJI use notes and recent statements by our Supreme Court. UJI 14-403 requires that UJI 14-6018 also be given where first-degree kidnapping is in issue. UJI 14-403 (stating in Use Note 1 that “[i]f first}jdegree kidnapping is an issue, Instruction 14-6018 NMRA is also given); State v. Barber,
{18} While we understand the importance of providing mandatory uniform jury instructions, see UJI-Criminal, General Use Note (stating that “}w]hen a uniform instruction is provided for the elements of a crime, a defense or a general explanatory instruction on evidence or trial procedure, the uniform instruction must be used without substantive modification or substitution”), we cannot conclude that failure to give a mandatory instruction automatically results in reversal or modification of an otherwise valid conviction. Indeed, our Supreme Court has recognized before that the failure to give a jury instruction, described as mandatory by the use note, does not automatically require reversal. State v. Doe,
{19} As we discussed above, in order to convict Defendant of kidnapping, the jury was required to find that Defendant (1) took, restrained, confined, or transported Victim, (2) by force, intimidation, or deception, and (3) with the intention to inflict a sexual offense on her. See UJI 14-403. For CSP II, the jury was asked whether Defendant caused Victim to engage in sexual intercourse while armed with a firearm. Neither party disputes that the jury was properly instructed on the essential elements of these offenses and returned affirmative findings. However, in order to convict of first-degree kidnapping, according to the special verdict form, the jury was required to further find that Defendant committed a sexual offense upon Victim. See UJI 14-6018 (Question 3) (“Do you unanimously find beyond a reasonable doubt that the defendant committed a sexual offense upon [the victim]?”). Here, the jury unquestionably found beyond a reasonable doubt that Defendant committed a sexual offense against Victim when it returned a guilty verdict on CSP II. This is all that is required under UJI 14-6018 to establish first-degree kidnapping. See UJI 14-6018 Use Note 1 (“Kidnapping is a second[-]degree offense unless the state meets its burden under Section 30-4-1 (B) of proving that the defendant... [inflicted] a sexual offense upon the victim.”). Therefore, because the jury instructions as a whole properly instructed the jury on the essential elements of first-degree kidnapping and the jury found Defendant guilty of kidnapping and CSP II, the district court erred in modifying Defendant’s conviction. See State v. Torrez,
III. Prosecutorial Misconduct
{20} Defendant argues that he was deprived of a fair trial due to prosecutorial misconduct. Defendant’s contentions can be grouped into two categories: (1) that during closing argument the prosecutor vouched for the credibility of Victim’s testimony and, both explicitly and by inference, argued that Defendant was lying; and (2) that the proseсutor made inappropriate references to the CODIS system, thereby indicating that Defendant may have had prior convictions. We address these issues in turn.
A. Closing Argument
{21} Defendantpoints to whathe contends are multiple instances of improper statements by the prosecutor during closing argument. After the prosecutor stated that it was the jury’s duty to determine the credibility of witnesses, the prosecutor stated that she would point out indicators that would help the jury decide that “[Victim] is not lying to you, and she’s telling you the truth about what happened.” This included highlighting Victim’s emotiоns while on the stand, the consistency of Victim’s statements, and the absence of motive for Victim to be untruthful in her account of the events. Defendant also emphasizes the prosecutor’s arguments that Defendant’s version of events “[did] not make sense.”
{22} Trial judges are afforded broad discretion in managing closing arguments because they are in the best position to assess the impact of allegedly improper statements by counsel. State v. Sosa,
{23} Prosecutors are permitted to comment on the veracity of witnesses so long as the statements are based on the evidence — not personal opinion — and are not intended to incite the passion of the jury. See State v. Aguilar,
{24} The prosecutor’s statements regarding Victim’s veracity do notrun afoul of these prohibitions. The prosecutor did not personally vouch for Victim’s credibility, either by insinuations of special knowledge or by virtue of her role as prosecutor. See State v. Paiz,
{25} Furthermore, the prosecutor’s statements regarding the veracity of Defendant’s story do not constitute misconduct. Defendant and Victim were the only witnesses to the event, and each testified to conflicting accounts. Where a case essentially revolves around “which of two conflicting stories is true, a party may reasonably infer, and thus argue, that the other side is lying.” Aguilar,
B. Reference to CODIS
{26} Defendant was identified by DNA left at the scene. The DNA was run through the CODIS system and provided a positive match to Defendant. On appeal, Defendant concisely argues that “[t]he prosecutоr, as described in the facts, also made inappropriate references to CODIS.” Defendant makes no further argument as to why references to CODIS were inappropriate. In fact, upon reviewing Defendant’s facts section, we found no reference to statements by the prosecutor regarding the CODIS system. We are thus unaware of what “inappropriate references” Defendant is referring to, and we will not search the record to find facts to support this argument. Muse v. Muse,
IV. Evidence Supporting Defendant’s CSP ' II Conviction
{27} Pursuant to State v. Franklin,
{28} “The reviewing court does not weigh the evidence or substitute its judgment for that of the fact finder as long as there is sufficient evidence to support the verdict.” State v. Mora,
CONCLUSION
{29} For the forеgoing reasons, we reverse the district court’s modification of Defendant’s conviction and remand to reinstate Defendant’s conviction for first degree kidnapping. We affirm Defendant’s remaining convictions.
{30} IT IS SO ORDERED.
Notes
More specifically, the jury would have to find that Defendant did not release Victim in a safe place and did not commit the sexual offense or otherwise physically hann Victim. Section 30-4-1(B).
Arguably, the committee commentary is intended to mean that where the victim was freed without great bodily harmhaving been inflicted, this instruction should serve as the jury instruction for second-degree kidnapping.