June 17, 2019- State of New Mexico v. Rafael Anthony Cervantes, No. A-1-CA-36685

OCR transcription for search; preserved printed pages are authoritative

Court of Appeals of New Mexico
Filed 6/17/2019 12:07 PM

Led
1) INTHE “*URT Cx APPEALS OF Thu ST Ge N"WMEX.20 hark Reyn

~"STATE OF NEW MEXICO,

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Plaintiff-Appellee,
V. No. A-1-CA-36685
RAFAEL AN:i dT ONY CERVANTES,

Defendant-Appellant.

APPEAL » &UM 1k, DISTRICT COURT OF DONA ANA COUNTY
Fernando R. Macias, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General

Albuquerque, NM
for Appellee
Bennett J. Baur, Chief ublic Defender
William O’Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
BOGARDJUS, Judge.
3} Following a jury trial, — 2fendant Rafi nthony Cervantes v_ 3 convicted of
several crimes arising from a domestic dispute, including first-degree kidnapping,

child abuse, aggravated assault with a deadly weapon, criminal damage to property,

1 and false imprisonment. He appeals his kidnapping conviction, contending that the
2 evidence was legally and factually insufficient. We affirm.
3 BACKGROUND
4 {2 } 	The events leading to the kidnapping charge unfolded on December 27, 2015,
5 when Defendant, in a rage, wielded a knife at household members and guests in his
6 home. Defendant, then eighteen, was living with mother, his two young brothers, his
7 teenage 	sister, his 	girlfriend, 	Nicole, then 	seventeen, 	and the 	couple' s baby.
8 Defendant came home from work drunk and went to bed. Nicole, upset that
9 Defendant was not helping with the laundry and the baby, woke him up. The two
10 	argued, partly over text messages on Nicole ' s phone. Angry, he took her phone from
11 	her and at some point threw it to the other side of the house. Following the argument,
12 Defendant' s mother told him to respect Nicole and "grow up." He grew angrier and
13 	took a large knife from the kitchen. Reacting to the ongoing pressure he felt to be
14 "the man of the house" and feeling unappreciated by his family, Defendant lashed
15 	out in a prolonged rage. In the course of the episode, his mother was cut in the arm
16 	with the knife. Defendant demanded that the older members of the household and
17 	others who were visiting do as he say. He repeatedly threatened to kill all of them
18 	and told them that they could not leave. He took away most of their cell phones to
19 prevent them from calling anybody. Defendant also hit Nicole, hit his sister, held the
20 knife to Nicole ' s neck, and committed other aggressive acts.
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1 	{3} 	Toward the end of the incident, Defendant told Nicole to pack for the baby so
2 the three could leave. Once she had done that, he grabbed Nicole by the arm and
3 they left the house. Defendant's fit of anger continued outside, where he committed
4 more acts of violence and aggression. Eventually the police arriv ed and subdued
5 him.
6 {4} 	The 	State 	later 	charged 	Defendant 	with 	the 	v anous 	cnmes, 	including
7 kidnapping Nicole, which is the only crime at issue in this appeal.
8 DISCUSSION
9 	{S} 	Defendant raises two issues, both of which concern elements necessary to
10 	sustain 	his 	kidnapping 	conviction. 	Defendant 	first 	contends 	that 	there 	was
11 	insufficient evidence for the conviction because preventing a person from calling the
12 police does not constitute being held to service under the kidnapping statute. He next
13 	contends that there was insufficient evidence at trial to prove that he restrained or
14 	confined Nicole. We address his arguments in tum.
15 	I.
16 	{6 }
The Kidnapping Conviction Is Legally Sufficient
Kidnapping in relevant part is "the unlawful taking, restraining, transporting
17 	or confining of a person, by force , intimidation or deception, with[, among other
18 	alternative forms of intent,] intent ... that the victim be held to service against the
19 victim ' s will[.] " NMSA 1978, § 30-4-l(A) (2003). The State' s theory for satisfying
20 	the "held to service" element of the kidnapping statute was that Defendant held
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1 Nicole to service by keeping her from calling the police to prevent his arrest.
2 Defendant asserts 	that keeping a victim from 	contacting the police 	is 	legally
3 insufficient to satisfy the element. Defendant's assertion requires us to construe the
4 meaning of "held to service." We review such a question of statutory interpretation
5 de novo. State v. Almanzar, 2014-NMSC-001, ,r 9,316 P.3d 183.
6 	{7} 	A person "held to service" is one who "is made to submit his or her will to the
7 direction and control of another for the purpose of assisting or benefitting someone
8 or something." State v. 	Vernon, 1993-NMSC-070, ,r 11, 116 N.M. 737, 867 P.2d
9 407, (omission, internal quotation marks, and citation omitted), superseded by
10 statute as stated in State v. Baca, 1995-NMSC-045, ,r 41, 120 N.M. 383, 902 P.2d
11 	65. "[T]he phrase should be construed to effectuate the same overall scheme as
12 holding for ransom and as a hostage-namely, to accomplish some goal that the
13 	perpetrator may view as beneficial to himself or herself." Id. 	( omission, internal
14 quotation marks, and citation omitted). A victim can be considered held to service
15 	in these circumstances when either performing-or foregoing the perfonnance of-
16 some act. See id. ,r 13.
17 	{8} 	Our courts have applied these principles to hold that certain factual scenarios
18 	do not meet the definition of "held to service." For instance, Vernon rejected the
19 	state's alternative theories that the 	element was 	satisfied ( 1) when "two men
20 	discuss[] their problems"-that is, when the defendant in the case wanted to learn
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1 why the victim was doing "irritating" things and wanted assurance that the victim
2 would stop pestering him; and (2) when a victim is removed to a place where there
3 would be fewer witnesses to the victim's murder. 1 Vernon, 1993-NMSC-070, ,r,r 14-
4 	15. Concerning the first theory, the Court reasoned that discussing or resolving
5 problems 	"is 	a 	rather 	benign 	service 	to 	support 	the 	penalty 	assessed 	for
6 kidnapping[,]" and rejected the state's theory of "held to service." Id. 	114. In
7 rejecting the state's second theory, the Court commented that "no 	'service' 	is
8 performed by the victim of a shooting with intent to kill because the victim does not
9 confer any independent assistance or benefit to the perpetrator of the crime." Id. 1 15.
10 	{9} 	Our 	Supreme 	Court 	extended 	Vernon 	to 	a 	case 	involving 	murder 	and
11 	attempted murder in Baca. 2 The Court compared Vernon's "moving a victim to a
12 remote location so that there are no witnesses" to Baca's facts: removing two victims
13 	from a house, putting them in a car, driving them to a ranch road, and running them
14 over at that location to reduce evidence of the crime. Baca, 1995-NMSC-045, ,r,r 6,
15 	42. Applying Vernon's analysis, our Supreme Court concluded that the victims were
1 The 	Legislature 	in 	effect 	superseded 	Vernon 	by 	supplementing 	the
kidnapping statute. The new, fourth prong provides in relevant part that kidnapping
can consist of the transportation of a victim by force, intimidation, or deception with
intent to inflict death, physical injury, or a sexual offense on the victim. See § 30-4-
l(A)( 4).
2 Baca was decided shortly after the Legislature amended the kidnapping
statute. See Part I, paragraph 8 n.1, supra. The events giving rise to Baca occurred
when the previous version of the statute was in effect.
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1 not "held for service" because the requisite independent assistance or benefit to the
2 defendant was lacking. Id. ,r 42.
3 	{10} 	Against the backdrop of cases interpreting "held to service," Defendant argues
4 that his actions toward Nicole were similar to the actions of the Vernon and Baca
5 defendants. Those defendants transported their victims to eliminate evidence of their
6 crimes-much like, Defendant argues, he allegedly "confined or transported Nicole
7 to (temporarily) disable her as a witness[.]"
8 	{11} 	We disagree that Vernon and Baca sufficiently resemble this case insofar as
9 the held-to-service consideration is concerned. We note that the defendants in both
10 	Vernon and Baca were each charged with a crime against the victim in addition to
11 	the kidnapping of the victim. Here, in contrast, kidnapping was the only crime
12 against Nicole that Defendant was ultimately charged with. This difference matters
13 	because it is not plain movement, restraint, or confinement that fails the "held to
14 service" test, but rather the "incidental movement in the course of a murder" that
15 	fails. 	Vernon, 	1993-NMSC-070, ,r 16; accord Baca, 	1995-NMSC-045, ,r 42 ("In
16 both [ Vernon and Baca] the incidental movement of the victim is for the purpose of
17 	facilitating the murder[.]") The 	Vernon court was reluctant to deem movement
18 	incidental to a murder "service"-an d, hence, kidnapping-because doing so would
19 	effectively 	escalate 	second-degree 	murder 	to 	first-degree 	murder 	without 	a
20 	corresponding additional measure of culpability. 1993-NMSC-070, ,r 16.
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1 {12} 	Here, the restraint or confinement of Nicole was not incidental to another
2 crime against her. Rather, it stands apart from any other crime, its corresponding
3 culpability intact. Moreover, the evidence concealed by preventing Nicole from
4 calling the police was not evidence of a crime about to be committed, as in Vernon
5 and Baca, but rather was evidence of crimes Defendant was in the course of
6 committing. By not calling the police for help 	and, 	in the process, revealing
7 Defendant' s ongoing criminal acts, Nicole provided independent assistance-an
8 appreciable benefit-to Defendant. This service does not register as the equivalent
9 of, for example, discussing or resolving problems, the first theory rejected in Vernon,
10 nor as the equivalent of incidental movement for the purpose of facilitating murder,
11 	the second theory rejected in 	Vernon 	and the theory rejected in Baca. 	To the
12 	contrary, had the service been fully carried out by all involved in the incident, the
13 	police would not have been alerted, and Defendant would have been spared multiple
14 	convictions 	and 	his 	resulting 	prison 	sentence. 	Defendant 	himself apparently
15 	recognized this benefit: he testified that he took the cell phones of most of those
16 present, including Nicole, so as not to involve the police.
17 	{13} 	We conclude that keeping a victim from calling the police is sufficient to
18 	satisfy 	the 	"held 	to 	service" 	element 	of the 	kidnapping 	statute. 	Defendant' s
19 kidnapping conviction is thus legally sufficient.
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1 II. 	The Kidnapping Conviction Is Factually Sufficient
2 	{14} 	Defendant next challenges the sufficiency of the evidence supporting his
3 kidnapping conviction. He does not argue that there was insufficient evidence that
4 he sought to prevent Nicole from calling the police. Rather, he contends that the
5 State failed to put forth evidence at trial sufficient to prove beyond a reasonable
6 doubt that Defendant "restrained" or "confined" Nicole against her will. Defendant
7 provides scant support for his assertion- 	simply that "Nicole testified that she left
8 the house voluntarily with [Defendant] , indeed that it was her idea that they leave."
9 	{15} 	The State argues in response that Defendant' s contention presumes that the
10 kidnapping began when Defendant and Nicole, with the baby, fled the house. The
11 	State points out that the kidnapping could have begun before then- 	that is, when
12 Defendant took Nicole ' s cell phone, prevented her from leaving, and threatened her
13 	with the knife. On this point, we agree with the State that the jury could have
14 understood the kidnapping to begin before the three left the house. The State goes
15 	on to highlight evidence both that Defendant committed those acts and also that
16 Nicole left involuntarily.
17 	{16} 	"The test for sufficiency of the evidence is whether substantial evidence of
18 	either a direct or circumstantial nature exists to support a verdict of guilty beyond a
19 reasonable doubt with respect to every element essential to a conviction." State v.
20 	Montoya, 2015-NMSC-010, ~ 52 , 345 P.3d 1056 (internal quotation marks and
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1 citation omitted). Substantial evidence is "such relevant evidence as a reasonable
2 mind might accept as adequate to support a conclusion[.]" State v. Salgado, 1999-
3 NMSC-008, ,r 25, 126 N.M. 691,974 P.2d 661 (internal quotation marks and citation
4 omitted). On our review, we "view the evidence in the light most favorable to the
5 guilty verdict, indulging all reasonable inferences and resolving all conflicts in the
6 evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, ,r 26, 128
7 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that support a
8 different result. See State v. Rojo, 1999-NMSC-001, ,r 19 , 126 N.M. 438, 971 P.2d
9 829. Lastly, we measure the sufficiency of the evidence against the jury instructions
10 given, which become the law of the case. State v. Jackson, 2018-NMCA-066, ,r 22,
11 	429 P.3d 674.
12 {17} 	As a preliminary matter, we note that Defendant misstates the law of this case
13 	pertaining to the restraint-confinement element of kidnapping by arguing that the
14 	State failed to prove that Nicole was restrained or confined against her will. In
15 	actuality, the jury was instructed that, to find Defendant guilty of kidnapping, it had
16 to find that Defendant "restrained or confined Nicole ... by force or intimidation by
17 	threaten[ing] her with a knife[.]" That portion of the jury instruction did not include
18 	the phrase "against her will." Consequently, we will not review this aspect of
19 Defendant' s challenge for evidence that the alleged restraint or confinement was
20 against Nicole's will.
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1 {18} 	Turning now to our review, we note that testimony elicited at trial supports
2 the jury's finding that Defendant restrained or confined Nicole during the course of
3 the incident. Defendant admitted that he held his family members at knifepoint so
4 they would not leave. He admitted to holding the knife to Nicole's neck forcefully
5 enough to leave a bruise. Defendant's sister testified that he said he would not let
6 anyone leave the house. His aunt and cousin confirmed the testimony that no one
7 was allowed to leave, and his cousin further testified that people in the room were
8 scared. More specifically, Defendant's mother testified that Defendant would not let
9 Nicole leave the house. Lastly, Nicole testified that Defendant held the group in the
10 	living room at knifepoint, telling them they could not leave, and that he told everyone
11 	repeatedly that he was going to kill them. This testimony-even if contradicted by
12 other testimony, see id.-is relevant direct and indirect evidence from which a
13 	reasonable jury could conclude that Defendant restrained or confined Nicole through
14 his 	threatening 	acts 	and 	statements. 	We 	conclude, 	therefore, 	that Defendant 's
15 	kidnapping conviction is supported by sufficient evidence.
16 	CONCLUSION
17 {19} 	We affirm.
18 	{20} 	IT IS SO ORDERED.
~~ 	Jfs~~oku~
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1 WE CONCUR:
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Jacqueline R. Medina JACQUELINE R. MEDINA, Judge
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JAMES J. WECHSLER, Judge Pro Tempore
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