State v. WarsopState v. Warsop
- Reporters:
- , ,
- Before:
- Armijo
1. Dеfendant was convicted of retaliating against a witness in violation of
I. BACKGROUND
2. In the summer of 1992, the victim reported to police that she had been raped and beaten by Dеfendant at her residence in Albuquerque. Investigation of the rape and beating led to felony charges against Defendant. The victim testified at the grand jury hearing on these charges. As a result, Defendant pled guilty to criminal sexual penetration
3. While in the penitentiary, Defendant attended a parole heаring on May 13, 1996, at which he was granted parole with a tentative release date of June 10,1996. However, as Defendant was being escorted back to his cell immediately after this parole hearing, Officer Arana, a correctional officer, witnessed and reported the following:
At approximately 9:00 a.m. on the above date, I was escorting [Defendant] back to his cell from the parole board at which time [he] told me that he was not going to do these conditions of the parole and to fuck the parole board. He then said as soon as he saw that bitch he was going to kill her for what she did, and that he should have killed her the first time____ He also said that just because her dad is a judge and her uncle is a district attorney, she thinks she is covered. Fuck her dad. He then said that he didn’t care if he cаme back but at least this time it will be for murder. He then told me I’ll see him back sooner than I think.
Officer Arana’s report of Defendant’s statement led to the charge of retaliation against a witness that is the subject of this appeal.
4. Prior to Defendant’s trial on the retaliation charge, his defense counsel filed a motion in limine seeking to exclude evidence relating to his prior conviction for raping the victim. Defense counsel asserted that the name and nature of the felony witnessed by the victim was irrelevant, unfairly prejudicial, and inadmissible character evidence. The State countered that the evidence was admissible under Rule 11—404(B), NMRA 1997, for the purpose of showing Defendant’s intent and motive, and that the State would limit its prejudicial effect by not eliciting any testimony regarding the details of what hаppened during the rape. The trial court denied Defendant’s motion.
5. At trial, the victim identified Defendant and then described the rape and beating incident as follows:
Question: Was there an incident at your residence involving this individual?
Answer: Yes, sir.
Question: And what was the nature of that incident?
Answer: Mr. Warsop came to my house and he — he raped me and he beat me.
Question: At the time that he did that, did he make any threats to you?
Answer: Yes.
Question: What did he say?
Answer: He said he would kill me, and he would kill my childrеn.
Question: After that rape occurred, did you report that matter to the police?
Answer: Yes, I called 911.
The victim further testified that after she told the police what had happened and testified before a grand jury, Defendant was convicted and sentenced for the crime of raping her. She did not give any further details regarding the rape and beating incident or other threats.
6. Officer Arana testified regarding the statement Defendant made after the parole hearing and indicated that he believed Defendant was serious when he made that statement because of “the look on his face. He looked mad. He looked vindictive. He looked like he wanted to pay back for the time he did.” Officer Arana further testified that he did not believe the parole hearing prompted Defendant’s anger, since the parole board had granted Defendant’s parole. Agent Murray, who investigated the incident reported to him by Officer Arana, testified that Defendant admitted making the statement and that CSP is a felony offense.
7. Testifying in his own defense, Defendant also admitted that he made the statement to Officer Arana and that he was convicted of CSP in the second degree resulting in personal injury against the viсtim. However, he testified that when he made the statement to Officer Arana, he had no intention of harming the victim or having her hear what he said. He further explained that he was prohibited from contacting the victim.
8. Defendant requested a jury instruction on the lesser-included offense of attempted retaliation, which the trial court denied. The jury was instructed that the elements of the crime of retaliatiоn against a witness are: (1)
II. DISCUSSION
A. Intent Required for Retaliation Against a Witness
9.
Retaliation against a witness consists of any person knowingly engaging in conduct that causes bodily injury to another person or damage to the tangible property of another person, or threatening to do so, with the intent to retaliate against any person for any information relating to the commission or possible commission of a felony offense or a violation of conditions of probation, parole or release pending judicial proceedings given by a person to a law enforcement officer.
Quoting the definition of “threat” in Black’s Law Dictionary 1480 (6th ed.1990), Defendant asserts that there can be no “threatening” under this statute without a “communicated intеnt,” and that evidence of such a “communicated intent” was lacking in this case.
10. There is no Uniform Jury Instruction for the crime of retaliation against a witness, and the intent required to sustain a conviction for this crime is an issue of first impression in New Mexico. However, we note that
11. We first address Defendant’s contention that the statute is not violated if there is no intent to communicate the threat to the victim or to carry out the threat. This contention has been rejected by other courts interpreting practically identical statutory language. See State v. Jones, 642 So.2d 804, 805-06 (Fla.Dist.Ct.App.1994) (interpreting
The only intent requirement contained in the statute is that the defendant mаke the threats with the intent to retaliate against the witness; [the statute] does not require that the defendant have the intent to communicate his threats to the witness or, even, that the defendant have the intent to carry out his threats.
Hence, a defendant who threatened to kill three individuals who testified against him in a pending civil lawsuit could be charged with retaliating against a witness in a Florida court even thоugh the defendant’s threats were made in the presence of his probation officer rather than the individuals who testified against him. Id. at 806.
12. Interpreting a statute imposing criminal liability when a person “communicates to another a threat,” the Montana Supreme Court offered similar reasoning:
We believe that it is within the language and intent of the statute that the person who receives the threat can be different from the person who is sought to be compelled by the threat. Otherwise, for example, an individual could contact the news media threatening to take the life of a hostage if the Governor does not meet his demands, and he could not be convicted under this statute. But it is this very situation which the statute is aimed at outlawing.
13. For these reasons, we believe that the legislature intended
14.
“to retaliate” does not connote some retributive physical violence. Rather, it connotes the simple concept of “pay back.” The [victim], by his action, had upset [the defendant]. By threatening the [victim, the defendant] could perhaps upset him as well, thereby fully accomplishing the “pay back” that is the essencе of retaliation.
State v. Fixel, 945 P.2d 149, 152 (Utah Ct. App.1997) (citation omitted). We determine that this interpretation is consistent with New Mexico law. Cf. NMSA 1978, § 30-3A-2 (1997) (imposing criminal liability for pursuing a pattern of conduct that is intended to annoy, seriously alarm, or terrorize another person); NMSA 1978, § 30-3A-3 (1997) (imposing criminal liability for pursuing a pattern of conduct that would cause a reasonable person to feel frightened, intimidated, or threatened). In thе present case, the jury could reasonably infer that Defendant expected that his statement to Officer Arana would be communicated to the victim, and that Defendant intended to accomplish “pay back.”
15. Defendant next contends that Officer Arana’s testimony was insufficient to reasonably support such inferences because Officer Arana was not an expert on “body behaviоr.” We disagree. A defendant’s intent “is seldom, if ever, susceptible to direct proof, and may be proved by circumstantial evidence.” State v. Manus, 93 N.M. 95, 98, 597 P.2d 280, 283 (1979); see also Jones, 642 So.2d at 806 (applying this principle in context of retaliation against witness). In this case, Officer Arana testified that Defendant appeared to be serious when he made the threatening statement. This testimony was within the scope of a lay opinion that is admissiblе under
B. Jury Instruction on Attempted Retaliation
16. The foregoing discussion of the intent required to sustain Defendant’s conviction for retaliation against a witness largely disposes of his additional contention that the trial court erred by not instructing the jury on the lesser-included offense of attempted retaliation. The fact that Defendant’s threatening statement was not communicated
17. Defendant admitted making the statement in the presence of Officer Arana. Thus, there is no evidence that Defendant did less than what was required to complete the crime. See State v. Reynоlds, 111 N.M. 263, 270, 804 P.2d 1082, 1089 (Ct.App.1990) (no attempt instruction when the defendant admits doing the act but claims his intent was innocent); 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.3(c), at 58 (1986) (same). The trial court was correct in refusing to give an “attempted retaliation” instruction in this case.
C. Admission of Evidence Regarding Prior CSP Conviction
18. Defendant’s next contention is that the trial court erred by admitting evidence regarding the name and nature of the prior felony offense which formed the bаsis for the charge that he retaliated against a person who witnessed that offense. Defendant contends that this evidence is inadmissible because: (1) it is not relevant under
19. To support his argument that the evidence regarding Defendant’s prior CSP conviction was inadmissible, Defendant relies on State v. Tave, 1996 NMCA 056, ¶¶ 14-15, 122 N.M. 29, 919 P.2d 1094, in which this Court ruled that the name and nature of a priоr felony conviction are irrelevant, and therefore inadmissible, to prove that the defendant committed an essential element of the crime of being a felon in possession of a firearm. See also Old Chief v. United States, 519 U.S. 172,-, 117 S.Ct. 644, 655, 136 L.Ed.2d 574 (1997) (applying
20. In contrast, Defendant’s prior felony was closely related to the retaliation offense because the same person was the victim of both crimes. The State could not rest after proving that Defendant had committed a pri- or felony; it also needed to show that the victim of Defendant’s retaliation was a witness who had reported that prior fеlony to a law enforcement officer, and that Defendant intended to retaliate against that witness for doing so. See § 30-24-3(B); cf. State v. Hamilton, 327 S.C. 440, 486 S.E.2d 512, 515 (S.C.Ct.App.1997) (name of prior felony conviction admissible when it forms specific element of crime charged).
21. Under these circumstances, the victim’s testimony regarding what she witnessed and reported with respect to the prior felony is relevant to prove Defendant’s intent and motive with respect to the retaliation charge. See State v. Woodward, 1995 NMSC 082, ¶ 17, 121 N.M. 1, 908 P.2d 231 (evidence that the defendant struck victim in past was admissible to show requisite mental state for first-degree murder). Specifically, the victim’s testimony in this case is relevant to show that: (1) she reported the prior felony offense to a law enforcement officer; (2) the offense and her report were sufficiently serious to motivate Defendant to retaliate
22. In this ease, both the State and the trial court were careful to limit the prejudicial effect of the victim’s testimony. The State did not elicit testimony regarding the details of thе rape and beating incident, and the trial court granted Defendant’s motion to exclude evidence of other threats that the victim received while the rape prosecution was pending. Under these circumstances, we cannot say that the trial court abused its discretion by admitting evidence regarding the name and nature of Defendant’s prior felony. The trial court was correct in detеrmining that such evidence was relevant to establishing Defendant’s intent and motive, and its probative value was not substantially outweighed by its prejudicial effect.
D. Jury Instruction That CSP is a Felony
23. The foregoing discussion of the admissibility of evidence regarding Defendant’s prior CSP conviction largely disposes of Defendant’s contention that the trial court erred by instructing the jury that CSP is a felony. The instruction is necessary to convey an essential element of the crime of retaliation against a witness, namely that the offense which the victim witnessed and reported was a felony. See § 30-24-3(B);
E. Sufficiency of Evidence to Aggravate Sentence
24. Defendant asserts on appeal that even if we do not reverse his conviction, we should reverse and remand for resentencing because the State did not give Defendant adequate notice of its intent to seek aggravation of Defendant’s sentence under
25. The aggravating factor presented by the State and relied upon by the trial court in its decision to enhance Defendant’s sentence was the level of “anger and ill will” that Defendant displayed toward thé victim. Defendant already was on notice of this aggravating factor because it is among the circumstances forming the basis of the retaliation charges on which Defendant was convictеd. See State v. Kurley, 114 N.M. 514, 519, 841 P.2d 562, 567 (Ct.App.1992). Furthermore, Defendant points to no additional mitigating factors that he would have presented if he had received additional notice. For these reasons, we affirm the trial court’s decision to aggravate Defendant’s sentence.
III. CONCLUSION
26. For the foregoing reasons, we affirm Defendant’s conviction for retaliation against a witness and the aggravation of his sentence.
27. IT IS SO ORDERED.
FLORES and BOSSON, JJ., concur.