State v. LozoyaState v. Lozoya
Case Information
*1 Certiorari Denied, May 31, 2017, No. S-1-SC-36449
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: April 5, 2017
Docket No. 34,651
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BRANDON LOZOYA,
Defendant-Appellant. APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Angie K. Schneider, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Elizabeth Ashton, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
SUTIN, Judge. Defendant Brandon Lozoya was charged and convicted by a jury of contributing to
the delinquency of a minor (CDM), in violation of NMSA 1978, Section 30-6-3 (1990), and shoplifting, in violation of NMSA 1978, Section 30-16-20(A)(1) (2006). On appeal, Defendant argues (1) that his convictions for CDM and shoplifting as an accessory violate *2 double jeopardy; (2) alternatively, his conviction for CDM violates the plain language of Section 30-16-20(C), under a statutory construction analysis; (3) the State failed to present sufficient evidence of CDM; (4) the district court erred in failing to include knowledge of age as an element in the CDM instruction; (5) the district court erred in allowing the State to impeach Defendant with his prior conviction; and (6) the prosecutor committed prosecutorial misconduct during closing argument. We hold that Defendant’s convictions for CDM and shoplifting violate double jeopardy, and for the reasons stated in this opinion, we reverse and remand with instructions to vacate the shoplifting conviction.
BACKGROUND
{2} Defendant was at a house party in Alamogordo, New Mexico, when he was offered a ride to Walmart to get more alcohol. He accepted the ride, and when he entered the backseat of a female friend’s vehicle, he noticed that a third person, Child, was in the front passenger seat. Defendant and Child had never met each other before. The three individuals drove for approximately three to four minutes to Walmart. When they arrived, Defendant and Child got out of the car, entered Walmart, and headed toward the alcohol section. Defendant and Child dispute what was known to Defendant before entering Walmart and while they were in Walmart’s alcohol section. Child testified that her intent when she was dropped off at Walmart was to steal bottles of alcohol. She testified that she had discussed her intent to shoplift with Defendant, and Defendant “looked out to see if anyone was coming” while she shoplifted. According to Child, Defendant pointed out bottles of alcohol that he wanted, but she instead only placed bottles she wanted in her purse. Child testified that she told Defendant that she did not have any money. Child admitted that she did not tell Defendant her age and admitted that she had never met Defendant before that night. Defendant testified that no one suggested stealing liquor and that he had no idea
Child intended to shoplift. According to Defendant, he did not know Child was shoplifting until she had taken a second bottle. Defendant also testified that he had no idea how old Child was and assumed she was twenty-one years old. After Child placed two bottles of alcohol in her purse, Defendant and Child headed
toward the exit. They were stopped by a Walmart asset protection associate who asked that they return the bottles. The associate testified that her observations made her believe that Defendant and Child were there together, and she believed that Defendant was assisting Child in picking out merchandise to steal. She further testified that Defendant asked her if she would agree to not call the police if they returned the items. The items were returned, and Child and Defendant left Walmart separately. The associate called the police, and Child and Defendant were both apprehended by law enforcement. For his role in the crime, Defendant was charged with shoplifting under $250 (a petty
misdemeanor) and CDM (a fourth degree felony). Prior to trial, Defendant moved to keep *3 out the names or nature of his prior convictions for robbery and possession of cocaine if he testified. The court deferred ruling at that time, but at trial denied the motion, finding that the probative value for impeachment purposes outweighed any prejudicial effect. At trial, Defendant testified in his own defense, and during direct examination, admitted he had previously been convicted of robbery and possession of cocaine. On cross-examination, the State further questioned Defendant about his prior convictions. He also questioned whether Defendant was under the influence of illegal drugs on the night in question and asked whether he had a sexual interest in Child. During closing argument, the prosecutor remarked, “What is a twenty-seven-year-old
man doing with a fifteen-year-old girl and another young lady in the car . . . ? Well, nothing good I expect.” He also referenced the fact that a condom packet was found in Defendant’s pocket after he was apprehended and searched by law enforcement, suggested that alcohol, minors, and condoms were “[n]ot a recipe for a good ending[,]” and pleaded to the jury “[d]on’t allow him to do this to our children.” According to the prosecutor, “[Defendant] went there with one purpose. To get booze and to have some fun that night. You can infer the rest.” The prosecutor also mentioned, “regarding [the] issue of credibility,” Defendant’s prior convictions, and categorized him as a “two-time felon.” Defendant was convicted on both counts, and this appeal followed.
DISCUSSION
I. Double Jeopardy We begin by analyzing Defendant’s claim that his CDM and shoplifting convictions
violate double jeopardy and that this Court must vacate one of his convictions. Because we
ultimately reverse Defendant’s shoplifting conviction on double jeopardy grounds, we need
not and do not separately address his statutory construction argument that appears to rely
almost entirely on the logic and case law set forth in his double jeopardy argument.
“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
,
is categorized as a double[]description case, which prohibits charging a defendant with violations of multiple statutes for the same conduct in violation of the Legislature’s intent. In such a case, double jeopardy bars a conviction if the conduct underlying the two offenses is unitary and the Legislature has not indicated an intent to punish the same conduct separately.
Id.
¶ 30 (alterations, internal quotation marks, and citations omitted). A double jeopardy
challenge is a constitutional question of law that the appellate courts review de novo.
Swick
,
conviction was unitary and that, under a double description analysis, a double jeopardy
violation exists. However, the parties disagree about which conviction should be vacated.
Defendant argues that the CDM charge must be vacated because according to Section 30-16-
20(C), “[a]n individual charged with a violation of this section shall not be charged with a
separate or additional offense arising out of the same transaction[,]” and thus, the Legislature
intended to bar punishment for CDM in cases, such as this, where CDM and shoplifting
arose out of the same transaction. Defendant also argues that “[t]o the extent the reach of this
statute is ambiguous, the rule of lenity applies” and that the Court should therefore vacate
his CDM conviction as opposed to his shoplifting conviction.
See State v. Santillanes
, 2001-
NMSC-018, ¶ 34,
a petty misdemeanor that carries a lesser punishment, must be vacated, while the CDM
conviction, a felony, must stand.
See State v. Montoya
,
conviction or the CDM conviction, we are persuaded that the appellate courts’ general
practice of vacating the conviction carrying the shorter sentence in cases where double
jeopardy protections have been violated is the proper approach here. In support of this
approach of vacating the conviction with the lesser punishment, our Supreme Court has held
that “[a]s a matter of separation of powers, it is the exclusive prerogative of the Legislature,
the law-making branch of our representative democracy, to determine relative seriousness
and punishment for criminal offenses.”
Montoya
,
punishment has also been utilized specifically in the context of Section 30-16-20(C). In
State
v. Ramirez
,
The prohibition on additional charges means the shoplifting charges were null when brought. It is for the [prosecution] to decide which charges to bring based upon the circumstances. Here, the [prosecution] chose burglary. Adding two charges of shoplifting in violation of the statutory limitation on additional charges was explicitly prohibited by the plain language of Section 30-16-20(C). Therefore, we vacate [the d]efendant’s convictions for two counts of shoplifting and remand to the district court for resentencing.
Ramirez
,
should vacate the CDM conviction as opposed to the shoplifting conviction. The rule of
lenity applies in cases where there is “insurmountable ambiguity” regarding legislative
intent, and it “does not apply to a determination of which conviction to vacate as a result of
impermissible multiple punishments.”
Santillanes
,
II. Sufficiency of the Evidence Defendant next argues that the State failed to present sufficient evidence of CDM.
Specifically, he argues that (1) one of the alternatives in the jury instruction that Defendant “allowed [Child] to shoplift” was legally inadequate under the statutory definition of the crime, and (2) the State was required to prove and failed to prove that he knew Child was under the age of eighteen. When reviewing claims of insufficient evidence, we “resolve all disputed facts in
favor of the [prosecution], indulge all reasonable inferences in support of the verdict, and
disregard all evidence and inferences to the contrary.”
State v. Smith
,
allowed Child to shoplift is “legally inadequate” and not within the statutory definition of
the crime. “[A] conviction under a general verdict must be reversed if one of the alternative
bases of conviction is legally inadequate and it is impossible to tell which ground the jury
selected.”
State v. Downey
,
the State’s theory of his guilt predicated on the fact that he “allowed Child to shoplift” was
legally inadequate. There was sufficient evidence for a jury to conclude that Defendant and
Child were acquainted to a degree that they were not strangers or “virtual strangers.”
In this case, Child testified that she had driven to Walmart with Defendant and had
discussed her shoplifting with him. Defendant “looked out to see if anyone was coming”
*7
while she shoplifted. Child testified that she told Defendant that she did not have any money.
The asset protection associate at Walmart testified that Defendant and Child appeared to be
working together, and she believed that Defendant was assisting Child in picking out
merchandise. Child and Defendant left Walmart separately but were ultimately apprehended
together by law enforcement. Given the facts of this case, we decline to conclude that the
alternative of allowing Child to shoplift fails to come within the statutory definition of the
crime or that it is beyond the intended reach of the statute, as argued by Defendant.
See
Griffin v. United States
,
B. Knowledge of Child’s Age Defendant also argues that the State failed to present sufficient evidence that
Defendant knew Child was under eighteen. He argues that CDM is not a strict liability
offense and asserts that the State should have been required to prove that he knew Child was
under eighteen as an essential element of CDM. In an attempt to bolster his position,
Defendant points to CDM cases where the charged adult had reason to know the age of the
child.
See, e.g.
,
State v. Trevino
,
conviction. The State looks to other states that have concluded CDM does require knowledge
but that the mental state only applies to the act of contributing to the delinquency not to the
child’s age.
See, e.g.
,
Gorman v. People
,
charged adult knew the child’s age is an issue of first impression. This Court has previously
held that “where the [prosecution] seeks to convict a defendant of CDM for causing or
encouraging a minor to refuse to obey the reasonable and lawful command or direction of
the minor’s parent . . . the [prosecution] must prove . . . that the defendant knew or by the
exercise of reasonable care should have known of such command or direction.”
State v.
Romero
,
we have considered whether proof of criminal intent is generally required as an essential
element of CDM.
State v. Gunter
,
or limit its application by imposing a knowledge requirement as requested by Defendant. We conclude that CDM does not require proof that the offending adult know the age of the child to whose delinquency the adult contributed. Because we hold that CDM does not require *9 proof that the offending adult know the at-issue child’s age, we need not address Defendant’s argument that failure to provide a knowledge-of-age element to the jury instruction constituted error.
III. Evidence of Defendant’s Prior Conviction
{28}
The appellate courts “review the admission of evidence under an abuse of discretion
standard and will not reverse in the absence of a clear abuse.”
State v. Sarracino
, 1998-
NMSC-022, ¶ 20,
with his prior robbery conviction. He argues that his prior robbery conviction was not a crime of dishonesty, and even if it was, its probative value was weakened by its remoteness because it occurred almost ten years prior. He also argues that the State sought to include evidence of his prior conviction for improper propensity purposes—i.e., to portray Defendant as a person who steals. He argues that admission of his prior conviction was used as substantive evidence of guilt and that admission of the prior conviction deprived Defendant of a fair trial. The State responds that the district court properly admitted evidence of Defendant’s
prior robbery conviction. It argues that when Defendant took the stand in his own defense, subjecting himself to cross-examination, the prosecution appropriately seized the opportunity to question his credibility under Rule 11-609 NMRA. The State agrees that the crimes of robbery and shoplifting/CDM are similar in nature but argues that evidence of Defendant’s prior conviction should not be prohibited based solely on the similarity of the crime. The State also argues that the fact Defendant’s prior conviction occurred almost ten years prior does not impact its admissibility because Rule 11-609(B) only limits admission if more than ten years has elapsed. Finally, the State argues that the district court properly weighed the probative value of the evidence of Defendant’s prior conviction and correctly determined that any prejudice was substantially outweighed. Rule 11-609(A)(1)(b) allows for impeachment of a witness by evidence of a criminal
conviction. Rule 11-609(A)(1)(b) states that when
attacking a witness’s character for truthfulness by evidence of a criminal conviction[] for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one . . . year the evidence must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant[.]
Thus, because Defendant chose to act as a witness and testify on his own behalf, his character for truthfulness could be impeached by evidence of his prior convictions, so long as the evidence’s probative value outweighed its prejudicial effect. Rule 11-609(B) further limits the use of a prior criminal conviction, but only applies if “more than ten . . . years have passed since the witness’s conviction or release from confinement for it, whichever is later.” Because the ten-year limitation did not apply to Defendant’s conviction, the State was not limited by Rule 11-609(B). We conclude that the district court did not abuse its discretion in holding that
evidence of Defendant’s prior robbery conviction was admissible as impeachment evidence.
Defendant chose to testify in his defense, and his version of the incident conflicts with the
version of the State’s witnesses. Defendant’s credibility was placed at issue, and we cannot
say that the probative value for impeachment purposes failed to outweigh its prejudicial
effect. Defendant denied involvement in Child’s shoplifting scheme and denied knowing
Child’s age. Child, however, testified that she informed Defendant of her plan and that
Defendant acted as her lookout. Thus, Defendant’s credibility was a central issue. “Under
such circumstances, it became more, not less, compelling to explore all avenues which
would shed light on which of the two witnesses was to be believed.”
State v. Trejo
, 1991-
NMCA-143, ¶ 15,
considered similar in some respects and “convictions for the same crime should be admitted
sparingly[,] . . . evidence of a prior offense is not prohibited for impeachment purposes
solely on the basis of its similarity with the presently charged crime.”
Id.
¶ 12 (citation
omitted). We reject Defendant’s argument that his robbery conviction should not have been
admitted under Rule 11-609 because it was a crime of violence, as opposed to a crime of
dishonesty. This Court has specifically held that robbery is a crime that involves dishonesty.
See State v. Day
,
IV. Prosecutorial Misconduct Finally, Defendant argues that the prosecutor committed prosecutorial misconduct
during closing argument in making improper propensity arguments, mischaracterizing the evidence, and arguing in a manner designed to appeal to sentiment and passion by painting Defendant as a sexual predator of children when no evidence supported that characterization. Specifically, Defendant notes the following statements by the prosecutor: Defendant was a “two-time felon”; the questioning of Defendant’s motives for being “with a fifteen-year-old *11 girl and another young lady”; “[d]on’t allow him to do this to our children”; and that the jury could “infer the rest” after noting, “Alcohol. Minors. Two females. Condoms. Not a recipe for a good ending.” Not having objected at the time of the comments, Defendant argues that the prosecutor’s misconduct resulted in fundamental error, and he requests that this Court reverse his convictions which, he asserts, were the result of an unfair trial.
{35} The State argues that the comments made by the prosecutor in his closing argument were “few and far between” and “a far cry from persistent or egregious.” It argues that the prosecutor could comment on the credibility of Defendant’s testimony during closing. Additionally, the State argues that the prosecution’s argument regarding Defendant’s intent to continue partying was based on properly admitted evidence and thus did not constitute prosecutorial misconduct. When, as in this case, no claim of prosecutorial misconduct was raised at trial, this
Court reviews for fundamental error.
See State v. Allen
,
when evaluated as a whole, did not deprive Defendant of a fair trial. We conclude that the prosecutor’s statements regarding Defendant’s criminal history referenced properly admitted evidence and did not constitute improper propensity evidence. The prosecutor’s mention of Defendant’s history was not the primary focus of the State’s closing argument, and we cannot say that it clearly impacted the jury’s verdict. Although we see no misconduct regarding the prosecutor’s portrayal of Defendant as a two-time felon, we can see no legitimate reason why the prosecutor would attempt to impute meaning to the fact that Defendant had a condom in his pocket, or why the prosecutor would indicate that alcohol, minors, and condoms were “[n]ot a recipe for a good ending.” The prosecutor’s clear attempt to portray Defendant as a sexual predator was unnecessary and improper. Despite our view that the prosecutor acted improperly when making certain
comments, we cannot conclude that the isolated comments that occurred over the course of
the prosecutor’s more than twenty-five-minute closing were “so egregious and had such a
*12
persuasive and prejudicial effect on the jury’s verdict that the defendant was deprived of a
fair trial[,]” thus giving rise to fundamental error.
Allen
,
CONCLUSION For the foregoing reasons, we reverse and remand with instructions to vacate
Defendant’s shoplifting conviction, and we affirm Defendant’s CDM conviction. IT IS SO ORDERED.
____________________________________ JONATHAN B. SUTIN, Judge WE CONCUR:
____________________________________
LINDA M. VANZI, Chief Judge
____________________________________
JAMES J. WECHSLER, Judge