State v. OconState v. Ocon
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Hector H. Balderas, Attorney General, Benjamin Lammons, Assistant Attorney General, Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM for Appellant
IVES, Judge.
{1} Defendant Roberto Ocon appeals his convictions for aggravated assault upon a peace officer (deadly weapon), in violation of
BACKGROUND
{2} On the afternoon of August 2, 2016, Victim called 911 from her cell phone. Victim did not rеspond when the operator answered, but the operator could hear people speaking Spanish on the open line. The operator, who understood Spanish, heard someone say the Spanish equivalent of “you‘re here to kill me; why are you here to kill me?” Believing that the call might have related to an act of domestic violence, the operator dispatched Officer Kevin Gutierrez and Chief James Jones of the Eunice Police Department to Victim‘s home. When Officer Gutierrez and Chief Jones arrived, a neighbor told them that she thought Victim‘s ex-boyfriend was there trying to hurt Victim. The neighbor‘s concerns were not unfounded; Defendant, who was in fact Victim‘s estranged husband, was in the home engaged in an argument with Victim that, by all accounts, turned physical.
{3} After speaking with the neighbor, the officers knocked on Victim‘s front door and announced thеmselves as police, and Defendant opened the door. Officer Gutierrez asked Defendant if Victim was there. Instead of answering, Defendant began walking back into the home. When Officer Gutierrez told and motioned for Defendant to come toward him, Defendant said, “Okay[,]” but continued toward the kitchen. Officer Gutierrez then drew his gun and approached the threshold of the kitchen while yelling at Defendant to get on the ground. Defendant turned back toward Officer Gutierrez, and, as the two men met at the threshold of the kitchen, Officer Gutierrez yelled, “No, no, no; no, no, no; get on the ground; get on the ground, sir” before shooting Defendant twice in the chest. Defendant was transported to a nearby hospital and ultimately survived the shooting. Victim was also transported by ambulance to a hospital, as she had sustained visible injuries.
{4} At trial, Officer Gutierrez testified that he shot Defendant because Defendant had armed himself with a knife in the kitchen and thrusted, slashed, and reared back to stab him with it. But Defendant‘s counsel argued that Defendant had been holding a cell phone. Footage from Officer Gutierrez‘s lapel camera is inconclusive; the moments surrounding the shooting are a blur, and the footage shows both a cell phone and a knife on the floor of the kitchen after the shooting. There was also a dispute at trial as to the amount of force Defendant used against Victim,
{5} For the violence against Victim, the State prosecuted Defendant for assault against a household member with intent to commit a violent felony, in violation of
DISCUSSION
I. Defendant‘s Conviction for Aggravated Assault Upon a Peace Officer Was Not the Result of Fundamental Error
{6} Defendant argues that we should reverse his conviction for aggravated assault upon a peace officer because the jury was not instructed on every essential element of the crime. The jury was instructed that, to convict Defendant of aggravated assault upon a peace officer by use of a deadly weapon, it had to find the following elements beyond a reasonable doubt:
- [D]efendant walked towards Officer Gutierrez with a knife and made a stabbing motion;
- At the time, [Officer] Gutierrez was a peace officer and was performing duties of a peace officer;
- [D]efendant knew [Officer] Gutierrez was a peace officer;
- [D]efendant‘s conduct caused [Officer] Gutierrez to believe [D]efendant was about to intrude on [Officer] Gutierrez[‘s] bodily integrity or personal safety by touching or applying force to [Officer] Gutierrez in a rude[,] insolent[,] or angry manner;
- A reasonable person in the same circumstances as [Officer] Gutierrez would have had the same belief;
- [D]efendant used a knife;
- This happened in New Mexico on or about the 2nd day of August 2016.
Although we agree with Defendant that the given instruction erroneously failed to inform the jury that it was also required to find that Defendant used a deadly weapon and that his conduct was unlawful, we conclude that these errors do not rise to the level of fundamental error under our Supreme Court‘s precedents and therefore do not warrant reversal.
A. Standard of Review
{7} We review for fundamental error because Defendant did not preserve his argument by objecting to the jury instruction at trial. State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. Our review involves two basic steps. The first is to determine whether error occurred. In other words, our analysis “begins at the same place as [the] analysis for reversible error[:]” we ask “whether a reasonable juror would have been confused or misdirected by the jury instruction.” Id. ¶ 19; see State v. Grubb, 2020-NMCA-003, ¶ 7, 455 P.3d 877 (“In a fundamental error analysis, we begin by considering whether reversible error exists[.]“).
{8} If we conclude that the instructions were erroneous, we proceed to the second step, asking whether the error is fundamental. Fundamental error exists if it would “shock the [court‘s] conscience” to allow the conviction to stand, Barber, 2004-NMSC-019, ¶ 14, either because of “the obvious innocence of the defendant,” id. ¶ 16, or because “a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused.” Id. ¶ 17. This inquiry requires us to “review the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case[.]” Id. ¶ 19 (internal quotation marks and citation omitted).
{9} Our Supreme Court has recognized that the omission of an essential element from a jury instruction often rises to the level of fundamental error, id. ¶ 20, but its precedent includes multiple formulations of the circumstances under which the omission of an essential element does not amount to fundamental error. These formulations diverge on a crucial point: whether the focus of the inquiry is on what the jury in a particular case actually found—what it “effectively determined,” State v. Orosco, 1992-NMSC-006, ¶ 19, 113 N.M. 780, 833 P.2d 1146—under the given instructions, or on the degree of confidence an appellate court has in what the jury would have found had it been properly instructed. Compare State v. Samora, 2016-NMSC-031, ¶ 29, 387 P.3d 230 (“Fundamental error occurs when jury instructions fail to inform the jurors that the [s]tate has the burden of proving an essential element of a crime and we are left with no way of knowing whether the jury found that element beyond a reasonable doubt.” (emphasis added) (internal quotation marks and citation omitted)), Barber, 2004-NMSC-019, ¶ 29 (“Error is not fundamental when the jury could not have reached its verdict without also finding the element omitted from the instructions.” (emphasis added)), and State v. Cunningham, 2000-NMSC-009, ¶¶ 23-24, 128 N.M. 711, 998 P.2d 176 (upholding a conviction because the omitted element ”was decided by the jury when [it] contemplated [a] separate . . . instruction” (emphasis added)), with State v. Padilla, 1997-NMSC-022, ¶ 8, 123 N.M. 216, 937 P.2d 492 (explaining that “[i]t is fundamental error . . . to fail to instruct on an essential element of a crime unless that element is undisputed” and “the jury undoubtedly would have . . . found” the element (emphasis added)), and State v. Lopez, 1996-NMSC-036, ¶ 13, 122 N.M. 63, 920 P.2d 1017 (“We will only affirm a case in which the trial court failed to instruct the jury on an essential element when, under the facts adduced at trial, that omitted element was undisputed and indisputable, and no rational jury could have concluded otherwise.” (emphasis added) (internal quotation marks and citation omitted)).
{10} We elaborate on both formulations, beginning with Orosco, which we view as the foundation for our Supreme Court‘s modern fundamental error jurisprudence in the context of jury instructions that omit essential elements and which has continued to inform the Court‘s decisions in recent years. See, e.g., Samora, 2016-NMSC-031, ¶¶ 28-29. In Orosco, our Supreme Court recognized that fundamental error does not exist where the jury actually, albeit implicitly,
{11} But other precedent of our Supreme Court demonstrates that an actual, though implicit, jury determination on an omitted element is not an absolute prerequisite to affirmance. State v. Stevens, 2014-NMSC-011, 323 P.3d 901, illustrates the narrow circumstance in which a conviction will be upheld because the jury‘s verdict, considered together with the given instructions and the parties’ legal and factual presentations, leaves no doubt that the jury would have found the omitted element if properly instructed. In Stevens, the jury had found the defendant guilty of criminal sexual penetration during the commission of a felony where the underlying felony was distribution of a controlled substance to a minor. Id. ¶¶ 4, 11. However, there were multiple errors in the jury instructions, including a failure to instruct the jury that it could not return a guilty verdict unless it found that the criminal sexual penetration was the result of the underlying felony of distribution of a controlled substance to a minor. Id. ¶ 44. Although the jury found that the defendant gave methamphetamine to the victim and that the defendant caused the victim to engage in a sex act, id. ¶¶ 13, 43, those findings did not explicitly or implicitly resolve the question of whether the defendant‘s provision of methamphetamine to the victim caused the victim to engage in the sex act. See id. ¶¶ 2-3, 13, 39, 44-45; see also id. ¶ 39 (holding “that
{12} Synthesizing our Supreme Court‘s precedent, we conclude that an appellate court may affirm a conviction notwithstanding the absence of an implicit jury finding on an omitted element if the jury, having considered the parties’ legal and factual presentations and returned a guilty verdict on the given instructions, undoubtedly would have found the essential element if properly instructed. See Padilla, 1997-NMSC-022, ¶ 8. That conclusion is possible only where proof of the omitted element is so strong that no rational jury could have failed to find that element. And, irrespective of the strength of the State‘s case, a reviewing court cannot conclude that the jury undoubtedly would have found an omitted element when that element was “disputed” or “in issue” at trial. Reversal is mandatory regardless of a defendant‘s trial strategy if “any evidence or suggestion in the facts, however slight” would have permitted a rational jury to conclude that the State failed to meet its burden to prove the omitted element beyond a reasonable doubt. Orosco, 1992-NMSC-006, ¶¶ 10, 13.3
B. The Error in the Instruction Did Not Amount to Fundamental Error Under the Circumstances Presented
{13} Applying the fundamental error standard set forth in our Supreme Court‘s precedents, we conclude that, although the jury instruction in Defendant‘s case omitted two essential elements, reversal is not warranted. The errors here were not fundamental because the jury‘s findings and the unchallenged evidence on which those findings rested show that the jury, if properly instructed, undoubtedly would have found both omitted elements. Cf. Stevens, 2014-NMSC-011, ¶¶ 44-46. The given instruction deviated from
{14} As to the deadly weapon element, the jury was only instructed that it could not return a guilty verdict unless it found beyond a reasonable doubt that “[D]efendant used a knife[.]” The given instruction omitted the further, necessary direction that “[a] knife is a deadly weapon only if you find that a knife, when used as a weapon, could cause death or great bodily harm.” See
{16} Although the jury did not implicitly decide that issuе, it undoubtedly would have found the knife to be capable of causing death or great bodily harm if properly instructed. Chief Jones testified that the knife was “large,” and Officer Gutierrez testified that it was a “fillet kni[fe]” with a “long, sharp blade[] . . . about six inches long.” Aside from that testimony, the only other evidence of the knife‘s character was a photograph of the knife, which was entirely consistent with the officers’ descriptions of it. Having reviewed all of the evidence and argument presented by the State and Defendant at trial, we see nothing suggesting that the “knife” the jury found was used could have been anything other than a sharp, six-inch-long knife. To provide a few obvious examples, no witness expressed doubt or uncertainty regarding those characteristics; no documentary evidence hinted that the knife did not possess them; and neither party argued that, if a knife was used, its characteristics were debatable.
{17} On the basis of the facts presented at trial and the jury‘s findings, we see no plausible reason to doubt that the jury, if asked, would have drawn the commonsense conclusion that the sharp, six-inch knife that Defendant used was capable of causing death or the kinds of injuries that amount to great bodily harm. Cf., e.g., State v. Cordova, 2016-NMCA-019, ¶¶ 18-19, 366 P.3d 270 (holding that the evidence was sufficient for the jury‘s conclusion that the victim suffered “great bodily injury” based on the victim‘s testimony that she “experienced severe bruising, road rash, and bruised ribs[,]” along with other testimony that allowed for the jury to conclude those injuries were “prolonged“). Neither the defense presented nor anything else in the record suggests that the sharp, six-inch knife in question would be incapable of causing death or great bodily harm. Compare Samora, 2016-NMSC-031, ¶ 28 (concluding, under Orosco, that an omitted element had been in issue at trial), with Stevens, 2014-NMSC-011, ¶¶ 45-46 (concluding, under Orosco, that an omitted element was not in issue). See generally Orosco, 1992-NMSC-006, ¶ 10 (requiring a reviewing court to determine whether the missing element was “in issue” by asking “whether there was any evidеnce or suggestion in the facts, however slight, that could have put the [omitted] element . . . in issue,” rather than focusing exclusively on the defense theory and presentation (emphasis added)). We think reason would have compelled the jury to find that the knife‘s use as a weapon could result in death or great bodily harm—indeed,
{18} Nor was the omission of the unlawfulness element. To establish that element, the State was required to prove beyond a reasonable doubt that Defendant “threatened the safety” or “challenged the authority” of Officer Gutierrez.
that [Defendant]’s conduct was sufficient to have put Officer Gutierrez in reasonable apprehension of a battery[] while simultaneously doubting that [Defendant]’s conduct represented a genuine threat to Officer Gutierrez’s authority or safety.” We conclude that no rational jury could have made such a finding.
{19} Although the jury’s guilty verdict does not imply a finding on whether Defendant “threatened the safety” or “challenged the authority” of Officer Gutierrez, the jury undoubtedly would have found, if properly instructed, that Defendant at least threatened the officer’s safety. The jury found that Officer Gutierrez reasonably believed Defendant was about to intrude on his bodily integrity or personal safety because Defendant used a knife to make a stabbing motion. It made those findings on the basis of unchallenged evidence showing that the knife was six inches long and that Defendant and the officer were at close quarters.9 Given the undisputed evidence of Defendant’s proximity to the officer and the facts underlying the findings the jury did make, whether there was an actual threat to Officer Gutierrez’s safety was not in issue here. Considering the lack of dispute on this element and the jury’s explicit findings accepting the State’s account of events, we have no doubt that the jury also would have found that Dеfendant’s conduct threatened Officer Gutierrez’s safety. We thus conclude that any rational jury, having determined that Defendant committed aggravated assault upon a peace officer in the manner shown at trial, would also have found “that [his] acts were performed in the manner proscribed by law.” Orosco, 1992-NMSC-006, ¶ 20.
{20} Given the unchallenged facts developed at trial, we conclude that, in light of the findings that the jury did make, the jury undoubtedly would have found, if properly instructed, that the knife was capable of causing death or great bodily harm and that Defendant acted unlawfully. The omission of the essential elements neither makes “the question of guilt . . . so doubtful that it would shock the conscience to permit the conviction to stand,” id. ¶ 12, nor “makes [the] conviction fundamentally unfair notwithstanding the apparent guilt of the accused.” Barber, 2004-NMSC-019, ¶ 17. Accordingly, we hold that Defendant’s conviction was not thе result of fundamental
II. The Evidence Was Sufficient for the Jury’s Verdict as to Aggravated Assault Upon a Peace Officer Under the Erroneous Instruction
{21} Defendant also argues that the evidence did not suffice to support his conviction for aggravated assault upon a peace officer because it was unclear from the lapel camera video whether Defendant in fact wielded a knife. We review the sufficiency of the evidence “in light of the defective jury instruction given below.” State v. Rosaire, 1996-NMCA-115, ¶ 20, 123 N.M. 250, 939 P.2d 597, aff’d, 1997-NMSC-034, 123 N.M. 701, 945 P.2d 66. We do so “for the same reason that . . . we review the sufficiency of all the evidence below, including the wrongfully admitted evidence.” Id.; see also State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (“The jury instructions becomе the law of the case against which the sufficiency of the evidence is to be measured.” (alterations, internal quotation marks, and citation omitted)). But see State v. Carpenter, 2016-NMCA-058, ¶ 15, 374 P.3d 744 (citing Musacchio v. United States, 136 S. Ct. 709, 713-15 (2016) (holding that, because “[s]ufficiency review essentially addresses whether the government’s case was so lacking that it should not have even been submitted to the jury[,]” “a sufficiency challenge should be assessed against the elements of the charged crime” (internal quotation marks and citation omitted))).
{22} In reviewing the sufficiency of the evidence, we first “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.” Cunningham, 2000-NMSC-009, ¶ 26. We then consider “whether the evidence, so viewed, supports the verdict beyond a reasonable doubt.” State v. Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076. “We do not reweigh the evidence or substitute our judgment for that of the fact finder as long as therе is sufficient evidence to support the verdict.” State v. Gipson, 2009-NMCA-053, ¶ 4, 146 N.M. 202, 207 P.3d 1179. “We will affirm a conviction if supported by a fair inference from the evidence regardless of whether a contrary inference might support a contrary result.” State v. Barrera, 2002-NMCA-098, ¶ 10, 132 N.M. 707, 54 P.3d 548.
{23} The jury was instructed in pertinent part that, to convict Defendant of aggravated assault upon a peace officer, it had to find beyond a reasonable doubt that (1) Defendant “walked towards Officer Gutierrez with a knife and made a stabbing motion”; (2) Defendant’s “conduct caused [Officer] Gutierrez to believe [Defendant] was about to intrude on [Officer] Gutierrez[’s] bodily integrity or personal safety by touching or applying force to [Officer] Gutierrez in a rude[,] insolent[,] or angry manner”; (3) “[a] reasonable person in the same circumstances as [Officer] Gutierrez would have had the same belief”; and (4) Defendant “used a knife[.]”
{24} At trial, Officer Gutierrez testified that Defеndant thrusted and slashed at him with a knife and reared back to stab him, placing him in fear for his life. Footage from Officer Gutierrez’s lapel camera was admitted into evidence, and it shows both a knife and a cell phone near where Defendant lay on the kitchen floor after being shot. A still from the video showing that knife was also admitted into evidence. Officer Gutierrez testified that the knife in the still was the knife that Defendant used to attack him. And Chief Jones testified that he saw a knife—and only a knife—on the floor after the shooting. Viewing this evidence in the light most favorable to the guilty verdict, we conclude that the jury rationally found that Defendant attacked Officer Gutierrez with a
III. We Reverse Defendant’s Conviction for Resisting, Evading, or Obstructing an Officer
{25} Defendant argues that we should reverse his conviction for resisting, evading, or obstructing an officer because (1) it resulted from a fundamental error in the jury instruction, and (2) his convictions for both resisting or abusing a peace officer and aggravated assault upon a peace officer constitute double jeopardy.11 The State concedes the fundamental error argument on the ground that the jury convicted Defendant of a crime that the State had not charged. See Grubb, 2020-NMCA-003, ¶ 9 (“[A] conviction for a crime with which the defendant was not charged . . . constitutes a due process violation that amounts to fundamental error.”). Although we are not bound by thе State’s concession, State v. Tapia, 2015-NMCA-048, ¶ 31, 347 P.3d 738, we agree that our precedents require reversal.12
{26}
{27} Here, the State charged Defendant under
IV. Defendant Is Not Entitled to a New Trial on the Charge of Battery Against a Household Member
{28} Defendant argues that the district court abused its discretion by admitting
{29} “We review the district court’s evidentiary rulings for an abuse of discretion.” State v. Garnenez, 2015-NMCA-022, ¶ 29, 344 P.3d 1054. “An abuse of discretion occurs when [a] ruling is clearly against the logic and effect of the facts and circumstances of the case.” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation marks and citation omitted). Even when a defendant shows that the district court has abused its discretion, the improper admission of evidence “is not grounds for a new trial unless the error is determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110. “Non-constitutional error is harmless when there is no reasonable probability the error affected the verdict.” State v. Serna, 2013-NMSC-033, ¶ 22, 305 P.3d 936 (alteration, emphasis, internal quotation marks, and citation omitted). In assessing the potential impact of an error on the outcome below, we review “all of the circumstances surrounding the error[,]” including “the source of the error, the emphasis placed on the error, evidence of the defendant’s guilt apart from the error, the importance of the erroneously admitted evidence to the prosecution’s case, and whether the erroneously admitted evidence was merely cumulative.” Id. ¶ 23 (internal quotation marks and citation omitted).
{30} Defendant objected to the testimony on confrontation clause and hearsay grounds at trial, and the district court overruled the objection. On appeal, Defendant only challenges the admissibility of the testimony under our hearsay rules and we therefore do not address the constitutional question. Assuming without deciding that the testimony was inadmissible hearsay, we conclude that there is no reasonable probability that its admission affected the verdict. The challenged testimony was cumulative of Officer Gutierrez’s description of the 911 call in the footage from his lapel camera that was admitted into evidence without objection. And, although the State argued in closing that Victim’s statements on the 911 call demonstrated that Victim believed Defendant was going to kill her, it did not otherwise emphasize the statements, which had little importance to the State’s case as to battery against a household member. Victim’s statements on the 911 call, though cumulative, were probative of the charge that Defendant committed aggravated assault against a household member with intent to commit a violent felony. Notably, however, the jury acquitted Defendant of that crime, indicating that the admission of the challenged testimony did not affect the verdict.
{31} Because there was ample evidence, apart from the challenged testimony, of Defendant’s guilt as to battery against a household member, the State had no reason to emphasize the idea that someone on the 911 call had said, “You’re here to kill me; why are you here to kill me?” The jury was instructed, consistent with
CONCLUSION
{32} We affirm Defendant’s convictions for aggravated assault upon a peace officer and battery against a household member. We reverse his conviction for resisting or abusing a peace officer and remаnd to the district court for a retrial on that charge.
{33} IT IS SO ORDERED.
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ZACHARY A. IVES, Judge
WE CONCUR:
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JENNIFER L. ATTREP, Judge
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BRIANA H. ZAMORA, Judge