State v. ParvilusState v. Parvilus
OPINION
{1} Defendant was convicted of second degree murder, kidnapping (one count of first degree and one count of second degree), aggravated burglary, aggravated assault, and interference with communications. Defendant entered his estranged wife’s apartment without permission, kidnapped his wife’s paramour, and killed the paramour. Later, Defendant also kidnapped and assaulted his wife. On Defendant’s motion for judgment of acquittal notwithstanding the verdict, the district court vacated the conviction for aggravated burglary on the basis of a statute providing that “[njeither husband nor wife . . . can be excluded from the other’s dwelling.”
BACKGROUND
{2} In March 2007, Defendant was a non-commissioned officer in the Air Force, stationed in Korea. Defendant’s wife (Wife) was also in the Air Force and volunteered for a temporary deployment in Kuwait, where she began an affair with Victim, a military police officer. Wife ultimately admitted the affair to Defendant but told him that she was not going to continue the relationship with Victim. Over a period of several months in late 2007 and early 2008, Defendant and Wife discussed the possibility of getting divorced.
{3} Wife returned to Alamogordo, New Mexico, in January 2008. Victim joined her there, and they resumed their affair. In February 2008, Wife revealed to Defendant that she had become pregnant with Victim’s child and that she had an abortion. A few days later, Defendant went AWOL, flew from Korea to El Paso, Texas, and drove to Alamogordo, where he checked into a motel. {4} The following day, Defendant bought a screwdriver and a box cutter to use in breaking into Wife’s apartment, and he also purchased a handgun.
{5} Victim and Defendant drove to the motel where Defendant was staying and went to Defendant’s room. According to Defendant’s testimony, Victim insisted on accompanying him to the motel because he believed that Wife had lied to both Victim and Defendant. Also according to Defendant, after the two men entered the motel room, Defendant placed the guns and the knife on one of the beds and began to talk to Victim, whereupon Victim grabbed one of the guns and pointed it at Defendant. Defendant testified that he feared he was about to be shot, so he stabbed Victim to death.
{6} Defendant then returned to Wife’s apartment. Wife testified that when she arrived at the apartment, Defendant accosted her and struck her in the head with a handgun, forced her to drive to the motel, and showed her Victim’s body in the motel room. According to Defendant, he accidentally hit Wife in the head with the gun and she voluntarily accompanied him to the motel. Soon after, Defendant drove with Wife to the office of the New Mexico State Police and turned himself in.
{7} Following a trial, the jury found Defendant guilty of second degree murder, two counts of kidnapping, aggravated burglary, aggravated assault, and interference with communications. Defendant moved for a judgment of acquittal notwithstanding the verdict, arguing in part that his entry into Wife’s apartment was not unauthorized, as required by the burglary statute, because
DISCUSSION
1. The State’s Appeal
{8} The State argues that the district court improperly vacated Defendant’s conviction for aggravated burglary. In order to find Defendant guilty of aggravated burglary, the jury had to find, among other elеments, that Defendant’s entry into Wife’s apartment was unauthorized. See
{9} “Statutory interpretation is an issue of law, which we review de novo.” State v. Duhon,
{10} We have no case law explaining the Legislature’s intent in 1907 when it enacted
{11} If the State is correct in theorizing that
{12} Through the lens of this sweeping prohibition against spousal exclusion, we consider the burglary statutes and our courts’ interpretation of those statutes. Our Supreme Court recently discussed at length the history and purpose of our existing burglary statutes in State v. Office of the Public Defеnder, ex rel. Muqqddin,
{13} The Court’s focus on the right to exclude dovetails with
{14} The State argues against this conclusion and relies for support on a New Mexico case and several cases from other jurisdictions. None of these cases persuade us that our reading of
{15} The State first relies on State v. Rubio, which involved a defendant charged with breaking and entering his girlfriend’s apartment.'
{16} The State argues that the present case is similar to Rubio in that both the burglary statutes and the breaking and entering statute seek to protect possessory interests rather than ownership interests. As a result, even if
{17} We are not persuaded that Rubio is relevant to this case. The defendant and the victim in Rubio were not married, so
{18} The State more appropriately relies on a case from Ohio and one from California, both of which are states that currently have or once had statutory provisions similar to
{19} The California case relied on by the State focused on the alleged burglar’s intent in entering the residence in question. See People v. Sears,
{20} Although the State does not cite a later California case, People v. Davenport,
{21} Although the results in these cases from Ohio and California seem “correct” in the moral sense, we are not persuaded by their rationale. With respect to the Ohio Supreme Court’s rationale in Lilly, we see nothing in
{22} More importantly, the Ohio and California courts, as a matter of policy, appear to have simply brushed aside the non-exclusion statutes. In our view, it is not our role to dictate what constitutes sound public policy because that is a matter best left to the Legislature. See Torres v. State,
{23} We appreciate the policy concerns underlying the courts’ decisions in Lilly and Davenport — concerns that may well motivate our Legislature to clarify the impact it intends
2. Defendant’s Cross-Appeal
{24} In his cross-appeal, Defendant makes five arguments for reversal of his convictions: (1) the district court erroneously refused to give Defendant’s requested instruction on the definition of sufficient provocation in connection with the crime of voluntary manslaughter, (2) there was insufficient evidence supporting Defendant’s conviction for first degree kidnapping, (3) the kidnapping statute is unconstitutionally vague and therefore void, (4) the district court’s failure to provide the jury with use instructions for the speсial verdict forms constitutes fundamental error, and (5) the district court should have granted Defendant a mistrial when jurors saw him arrive at court in a sheriff’s vehicle.
a. Instruction on Sufficient Provocation
{25} The district court instructed the jury on the elements of voluntary manslaughter, including the explanation that“[t]he difference between second degree murder and voluntary manslaughter is sufficient provocation.” Defendant tendered an instruction defining sufficient provocation according to UJI 14-222 NMRA, which states:
“Sufficient provocation” can be any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition. The “provocation” is not sufficient if an ordinary person would have cooled off before acting.
Defendant’s tendered instruction added the following language, which is not part of UJI 14-222: “A series of events over a considerable period of time may constitute sufficient provocation.” As authority supporting this addition, Defendant cited State v. Benavidez,
{26} Because Defendant preserved this issue by tendering the desired instruction, we review for reversible error. State v. Cabezuela,
{27} We arenotpersuadedthat¿?e«£m'<iez supports the additional instruction language sought by Defendant. In Benavidez, our Supreme Court concluded that there was enough evidence of sufficient provocation to support an instruction on voluntary manslaughter.
{28} We do not read the holding in Benavidez as a requirement to instruct a jury that events over a period of time can cоnstitute sufficient provocation. Furthermore, the instruction given in this case did not rule out the notion that sufficient provocation could arise from events occurring over a period of time.' In addition, our Supreme Court has not seen fit to change UJI 14-222 in the thirty-two years since Benavidez was decided. We therefore fail to see how the instruction given could have confused or misled the jury. See UJI Crim. General Use Note NMRA (stating that “when a uniform instruction is provided for the elements of ... a defense . . . , the uniform instruction must be used without substantive modification or substitution”).
b. Sufficiency of Evidence Supporting Kidnapping Conviction
{29} In order to convict Defendant of first degree kidnapping, the jury had to find beyond a reasonable doubt:
1. [Djefendant took, restrained, confined, or transported [Victim] by force, intimidation or deception;
2. [D]efendant intended to hold [Victim] against [Victim’s] will: to inflict death or . . . physical injury on [Victim]
OR
for the purpose of making [VJictim do something or for the purpose of keeping [VJictim from doing something;
3. [DJefendant was not suffering from a mental disease or disorder at the time the offense was committed to the extent of being incapable of forming the intention to hold [Victim] to inflict death or physical injury or for the purpose of making [VJictim do something or for the purpose of keeping [VJictim from doing something.
4. This happened in New Mexico on or about the 22nd day of February, 2008.
The jury could have reduced the conviction to secоnd degree kidnapping by finding that Defendant “voluntarily free[d VJictim in a safe place and [did] not inflict physical injury or a sexual offense upon [VJictim.”
{30} Defendant argues that there was insufficient evidence that he failed to free Victim in a safe place because he released Victim from the duct tape at Wife’s apartment and there was no evidence that Victim was injured by the restraint up to that point. Defendant further argues that there was no indication that he restrained Victim in any way after that. He notes that security camera photos at the motel show Defendant entering his motel room ahead of Victim.
{31} In reviewing for sufficiency of the evidence, we consider whether substantial evidence exists to support a verdict of guilty beyond a reasonable doubt with respect to every element of the crime charged. State v. Godoy,
{32} Although Defendant testified that he freed Victim from the duct tape because he no longer had а “problem” with him, that Victim insisted on driving Defendant to the motel, and that Defendant did not force Victim to go to the motel, the jury was free to reject this testimony. See State v. Rojo,
{33} There was other sub stantial evidence supporting the conviction for kidnapping. Defendant was armed with a knife and two guns when he and Victim left Wife’s apartment, the surveillance photos show Defendant with his hands in his pockets when he and Victim entered the motel room, and Victim left his watch and his wallet at the apartment. From this evidence, the jury could reasonably infer that Victim did not leave the apartment and accompany Defendant to the motel willingly because he feared that Defendant might use one ofthe handguns ifhe tried to escape. This inference was buttressed by Wife’s testimony that Defendant was armed with the same guns when he later forced her to accompany him to the motel and that she did not try to escape from Defendant when they subsequently drove to the police station because she was afraid Defendant would shoot her.
c. Alleged Vagueness of the Kidnapping Statute
{34} Defendant argues thatthe kidnapping statute as amended in 2003 is unconstitutionally vague and therefore should be deemed void. Specifically, Defendant claims that the 2003 amendment, which replaced “great bodily harm” with “physical injury,” turned all kidnappings and false imprisonments into first degree kidnapping because “physical injury” is not defined. The current form of the statute provides:
A. Kidnapping is the unlawful taking, restraining, transporting or confining of a person by force, intimidation or deception, with intent:
(1) that the victim be held for ransom;
(2) that the victim be held as a hostage or shield and confined against his will;
(3) that the victim b e held to service against the victim’s will; or
(4) to inflict death, physical injury or a sexual offense on the victim.
B. Whoever commits kidnapping is guilty of a first degree felony, except that he is guilty of a second degree felony when he voluntarily frees the victim in a safe place and does not inflict physical injury or a sexual offense upon the victim.
Section 30-4-1. The 2003 amendment substituted “physical injury or a sexual offense” for “greatbodily harm” in Subsection B.
{35} We review void-for-vagueness claims under a de novo standard. State v. Greenwood,
{36} As an aside, we note that Defendant mentions equal protection and strict scrutiny in his brief, but he does not explain or flesh out any contention that the kidnapping statute violates equal protection. We therefore decline to consider such an argument, to the extent that Defendant has attempted to make one. See Headley v. Morgan Mgmt. Corp.,
{37} As for his void-for-vagueness argument, Defendant does not provide any explanation for why he thinks the term “physical injury” fails to provide notice to an ordinary person as to what conduct is being prohibited. Instead, he simply asserts in conclusory fashion that the term allows law enforcement, prosecutors, and fact finders “to engage in arbitrary and discriminatory enforcement of the statute.” State v. Laguna,
{38} We fail to see how a person of ordinary intelligence would not understand what “physical injury” means. A rational juror would understand that the law intends a greater punishment for a kidnapper who fails to release his or her victim in a safe place without inflicting physical injury. We have already concluded that substantial evidence supported the jury’s view that Defendant failed to release Victim without physical injury; Victim’s death caused by Defendant clearly falls within the definition of “physical injury.” See id. ¶ 24 (stating that an appellate court reviews a void-for-vagueness challenge “in light of the facts of the case and the conduct which is prohibited by the statute” (internal quotation marks and citation omitted)). The statute is not unconstitutionally vague.
d. Failure to Provide Jury With Instructions for Special Verdict Forms
{39} Because there was an issue as to whether Defendant voluntarily released Victim in a safe place without inflicting physical injury, the district court provided the jury with special verdict forms asking the following:
Do you unanimously find beyond a reasоnable doubt that [Djefendant did not voluntarily free [Victim] in a safe place?
(Yes or No)
Foreperson
Do you unanimously find beyond a reasonable doubt that [D]efendant inflicted physical injury upon [Victim]?
______(Yes or No)
Foreperson
These questions were consistent with UJI 14-6018 NMRA, and the jury answered each question in the affirmative.
{40} However, the district court failed to provide the jury with the use instructions that, according to UJI 14-6018, precede the special verdict questions. The State tendered the preliminary instructions, but apparently due to an oversight, the instructions never made it into the jury’s packet. Those instructions tell the jury that if it finds the defendant guilty of kidnapping, then it must determine whether the defendant voluntarily freed the victim, whether the defendant inflicted physical injury on thе victim, or, in appropriate circumstances, whether the defendant committed a sexual offense. The instructions also tell the jury that in order to answer “yes” to any question, the state must prove the factors beyond a reasonable doubt. Id.
{41} At trial, Defendant did not object to the district court’s failure to provide the jury with these instructions. Therefore, he argues thatthe court’s failure constituted fundamental error requiring reversal of his kidnapping convictions. See
{42} Fundamental error occurs only in “cases with defendants who are indisputably innocent, and cases in which a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused.” State v. Barber,
{43} Defendant’s perfunctory argument is that the failure to include the preliminary instructions meant that “the jury had no basis to understand what purpose}] [the special verdict forms] served.” We are not persuaded that the absence of the preliminary instructions resulted in the jury’s cоnfusion regarding the special verdict forms. The prosecutor discussed the special verdict forms in her closing argument and explained that in connection with kidnapping, the jury would have to decide whether Defendant voluntarily freed Victim and Wife. The questions on the special verdict forms were self-explanatory. In addition, the jury understood the forms well enough to distinguish between the alleged kidnappings of Victim and Wife because the jury answered “no” in response to the question, “Do you unanimously find beyond a reasonable doubt that [Djefendant did not voluntarily [release Wife] in a safe place?” We conclude that the absence of the preliminary instructions to the special verdict forms did not constitute fundamental error.
e. Propriety of Mistrial
{44} Early in the trial, defense counsel moved for a mistrial on the ground that four jurors had seen Defendant arrive at the courthouse seated in the back of a police car. The district court denied the motion, and Defendant asserts that this was error. The district court’s ruling on a motion for a mistrial is addressed to the court’s sound discretion and will not be disturbed absent a showing of abuse of discretion. State v. Fry,
{45} The district court relied on State v. Holly,
{46} In this case, as in Holly, no evidence was introduced establishing that any jurors actually saw Defendant in the police car and, if they did see Defendant, there is no indication that the exposure was not inadvertent. Although Holly was decided under a fundamental error standard, we have additional case law reviewing similar claims under an abuse of discretion standard and holding that inadvertent exposure to a defendant in handcuffs did not prejudice the defendant. See, e.g., Statе v. Mills,
CONCLUSION
{47} For the foregoing reasons, we affirm the judgment of the district court.
{48} IT IS SO ORDERED.
WE CONCUR:
Notes
Apparently the lease on the apartment was originally in the names of both Wife and Defendant, but at some point prior to Defendant’s going AWOL, the apartment’s lessor, Wife, and Defendant agreed that Defendant would be released from any obligations under the lease.